# Title 33.1 — Department of Environmental Quality

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

## Chapter 33.1-20-08 — Disposal of Coal Combustion Residuals in Landfills and Surface Impoundments

### § 33.1-20-08-01. Definitions.

The terms used in this chapter have the same meaning as in North Dakota Century Code section
1. "Active facility or active electric utilities or independent power producers" means any facility
subject to the requirements of this article that is in operation on October 19, 2015. An electric
utility or independent power producer is in operation if it is generating electricity that is
provided to electric power transmission systems or to electric power distribution systems on or
after October 19, 2015. An offsite disposal facility is in operation if it is accepting or managing
CCR on or after October 19, 2015.
2. "Active life or in operation" means the period of operation beginning with the initial placement
of solid waste in the solid waste management unit and ending at completion of closure
activities in accordance with section 33.1-20-08-07.
3. "Active portion" means that part of the solid waste management unit that has received or is
receiving solid waste and that has not completed closure in accordance with section
33.1-20-08-07.
4. "CCR landfill" means an area of land or an excavation that receives CCR and which is not a
surface impoundment, an underground injection well, a salt dome formation, a salt bed
formation, an underground or surface coal mine, or a cave. For purposes of this article, a CCR
landfill also includes sand and gravel pits and quarries that receive CCR, CCR piles, and any
practice that does not meet the definition of a beneficial use of CCR.
5. "CCR pile" means any noncontainerized accumulation of solid, nonflowing CCR that is placed
on the land. Coal combustion residuals that is beneficially used offsite is not a CCR pile.
6. "CCR surface impoundment" means a natural topographic depression, manmade excavation,
or diked area, which is designed to hold an accumulation of CCR and liquids, and the unit
treats, stores, or disposes of CCR.
7. "CCR surface impoundment height" means the vertical measurement from the downstream
toe of the CCR surface impoundment at its lowest point to the lowest elevation of the crest of
the CCR surface impoundment.
8. "CCR unit" means a CCR landfill, CCR surface impoundment, or lateral expansion of a CCR
unit, or a combination of more than one of these units, based on the context of the paragraphs
in which it is used. This term includes both new and existing units, unless otherwise specified.
9. "Existing CCR landfill" means a CCR landfill that receives CCR both before and after
October 19, 2015, or for which construction commenced prior to October 19, 2015, and

receives CCR on or after October 19, 2015. A CCR landfill has commenced construction if the
owner or operator has obtained the federal, state, and local approvals or permits necessary to
begin physical construction and a continuous onsite, physical construction program had begun
prior to October 19, 2015.
10. "Existing CCR surface impoundment" means a CCR surface impoundment that receives CCR
both before and after October 19, 2015, or for which construction commenced prior to
October 19, 2015, and receives CCR on or after October 19, 2015. A CCR surface
impoundment has commenced construction if the owner or operator has obtained the federal,
state, and local approvals or permits necessary to begin physical construction and a
continuous onsite, physical construction program had begun prior to October 19, 2015.
11. "Grading" means the placement of CCR only to the extent necessary to create sufficient
differences in elevation to support stormwater drainage.
12. "Ground water" means water below the land surface in a zone of saturation as defined in
North Dakota Century Code section 23.1-08-04.
13. "Hazard potential classification" means the possible adverse incremental consequences that
result from the release of water or stored contents due to failure of the diked CCR surface
impoundment or misoperation of the diked CCR surface impoundment or its appurtenances.
The hazardous potential classifications include high-hazard potential CCR surface
impoundment, low-hazard potential CCR surface impoundment, and significant-hazard
potential CCR surface impoundment, which terms mean:
a. "High-hazard potential CCR surface impoundment" means a diked surface impoundment
where failure or misoperation will probably cause loss of human life.
b. "Low-hazard potential CCR surface impoundment" means a diked surface impoundment
where failure or misoperation results in no probable loss of human life and low economic
or environmental losses, or both. Losses are principally limited to the surface
impoundment owner's property.
c. "Significant-hazard potential CCR surface impoundment" means a diked surface
impoundment where failure or misoperation results in no probable loss of human life, but
can cause economic loss, environmental damage, disruption of lifeline facilities, or
impact other concerns.
14. "Height" means the vertical measurement from the downstream toe of the CCR surface
impoundment at its lowest point to the lowest elevation of the crest of the CCR surface
impoundment.
15. "Inactive CCR surface impoundment" means a CCR surface impoundment that no longer
receives CCR on or after October 19, 2015, and still contains both CCR and liquids on or after
October 19, 2015.
16. "In operation" means the same as "active life".
17. "Maximum horizontal acceleration in lithified earth material" means the maximum expected
horizontal acceleration at the ground surface as depicted on a seismic hazard map, with a
ninety-eight percent or greater probability that the acceleration will not be exceeded in fifty
years, or the maximum expected horizontal acceleration based on a site-specific seismic risk
assessment.
18. "New CCR landfill" means a CCR landfill or lateral expansion of a CCR landfill that first
receives CCR or commences construction after October 19, 2015. A new CCR landfill has
commenced construction if the owner or operator has obtained the federal, state, and local

approvals or permits necessary to begin physical construction and a continuous onsite,
physical construction program had begun after October 19, 2015. Overfills also are
considered new CCR landfills.
19. "New CCR surface impoundment" means a CCR surface impoundment or lateral expansion of
an existing or new CCR surface impoundment that first receives CCR or commences
construction after October 19, 2015. A new CCR surface impoundment has commenced
construction if the owner or operator has obtained the federal, state, and local approvals or
permits necessary to begin physical construction and a continuous onsite, physical
construction program had begun after October 19, 2015.
20. "Overfill" means a new CCR landfill constructed over a closed CCR surface impoundment.
21. "Pertinent surrounding areas" means all areas of the CCR surface impoundment or
immediately surrounding the CCR surface impoundment that have the potential to affect the
structural stability and condition of the CCR surface impoundment, including the toe of the
downstream slope, the crest of the embankment, abutments, and unlined spillways.
22. "Poor foundation conditions" 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 an existing or new CCR unit. For example, failure to maintain static and
seismic factors of safety as required in subsection 3 of section 33.1-20-08-04 would cause a
poor foundation condition.
23. "Qualified person" means a person or persons trained to recognize specific appearances of
structural weakness and other conditions that are disrupting or have the potential to disrupt
the operation or safety of the CCR unit by visual observation and, if applicable, to monitor
instrumentation.
24. "Retrofit" means to remove all CCR and contaminated soils and sediments from the CCR
surface impoundment, and to ensure the unit complies with the requirements in subsection 2
of section 33.1-20-08-04.
25. "Seismic factor of safety" means the factor of safety (safety factor) determined using analysis
under earthquake conditions using the peak ground acceleration for a seismic event with a
two percent probability of exceedance in fifty years, equivalent to a return period of
approximately two thousand five hundred years, based on the United States geological survey
seismic hazard maps for seismic events with this return period for the region where the CCR
surface impoundment is located.
26. "Seismic impact zone" means an area having a two percent or greater probability that the
maximum expected horizontal acceleration, expressed as a percentage of the earth's
gravitational pull (g), will exceed 0.10 g in fifty years.
27. "Slope protection" means measures installed on the slopes or pertinent surrounding areas of
the CCR unit that protect the slope against wave action, erosion, or adverse effects of rapid
drawdown. Slope protection includes grassy vegetation and engineered slope protection
measures.
History: Effective July 1, 2020; amended effective October 1, 2024.
General Authority: NDCC 23.1-08-03
Law Implemented: NDCC 23.1-08-04
### § 33.1-20-08-02. Applicability.

1. The requirements of this chapter apply to owners and operators of new and existing landfills
and surface impoundments, including any lateral expansions of such units that dispose or

otherwise engage in solid waste management of CCR generated from the combustion of coal
at electric utilities and independent power producers. Unless otherwise provided in this
chapter, these requirements also apply to disposal units located offsite of the electric utilities
and independent power producers. This chapter also applies to any practice that does not
meet the definition of a beneficial use of CCR.
2. The requirements of this chapter apply to inactive CCR surface impoundments at active
electric utilities or independent power producers, regardless of the fuel currently used at the
facility to produce electricity.
3. This chapter does not apply to CCR landfills that have ceased receiving CCR prior to
October 19, 2015.
4. This chapter does not apply to wastes, including fly ash, bottom ash, boiler slag, and flue gas
desulfurization materials generated at facilities that are not part of an electric utility or
independent power producer, such as manufacturing facilities, universities, and hospitals. This
chapter also does not apply to fly ash, bottom ash, boiler slag, and flue gas desulfurization
materials, generated primarily from the combustion of fuels, including other fossil fuels, other
than coal, for the purpose of generating electricity unless the fuel burned consists of more
than fifty percent coal on a total heat input or mass input basis, whichever results in the
greater mass feed rate of coal.
5. This chapter does not apply to practices that meet the definition of a beneficial use of CCR.
6. This chapter does not apply to CCR placement at active or abandoned underground or
surface coal mines.
7. This chapter does not apply to municipal solid waste landfills that receive CCR.
8. Owners and operators of CCR units that are subject to this chapter are subject to the solid
waste management requirements of this article, unless specifically excluded in other chapters.
9. The following are applicable to all CCR units:
a. Floodplains.
(1) Facilities or practices in floodplains must not restrict the flow of the base 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 life, wildlife, or land or water
resources.
(2) As used in this section:
(a) "Based flood" means a flood that has a one percent or greater chance of
recurring in any year or a flood of a magnitude equaled or exceeded once in
one hundred years on the average over a significantly long period.
(b) "Floodplain" means the lowland and relatively flat areas adjoining inland and
coastal waters, including flood-prone areas of offshore islands, which are
inundated by the base flood.
(c) "Washout" means the carrying away of solid waste by waters of the base flood.
b. Endangered species.
(1) Facilities or practices must not cause or contribute to the taking of any endangered
or threatened species of plants, fish, or wildlife.

(2) The facility or practice must not result in the destruction or adverse modification of
the critical habitat of endangered or threatened species as identified in title 50, Code
of Federal Regulations, part 17.
(3) As used in this section:
(a) "Endangered or threatened species" means any species listed as such
pursuant to section 4 of the Endangered Species Act.
(b) "Destruction" or "adverse modification" means a direct or indirect alteration of
critical habitat which appreciably diminishes the likelihood of the survival and
recovery of threatened or endangered species using that habitat.
(c) "Taking" means harassing, harming, pursuing, hunting, wounding, killing,
trapping, capturing, or collecting or attempting to engage in such conduct.
c. Surface water.
(1) For purposes of section 4004(a) of the Resource Conservation and Recovery Act, a
facility must not cause a discharge of pollutants into waters of the United States that
is in violation of the requirements of the national pollutant discharge elimination
system under section 402 of the Clean Water Act, as amended.
(2) For purposes of section 4004(a) of the Resource Conservation and Recovery Act, a
facility must not cause a discharge of dredged material or fill material to waters of
the United States that is in violation of the requirements under section 404 of the
Clean Water Act, as amended.
(3) A facility or practice must not cause nonpoint source pollution of waters of the
United States that violates applicable legal requirements implementing an areawide
or statewide water quality management plan that has been approved by the
administrator under section 208 of the Clean Water Act, as amended.
(4) Definitions of the terms discharge of dredged material, point source, pollutant,
waters of the United States, and wetlands can be found in the Clean Water Act, as
amended, 33 U.S.C. 1251 et seq., and implementing regulations, specifically
title 33, Code of Federal Regulations, part 323 (42 FR 37122, July 19, 1977).
History: Effective July 1, 2020; amended effective October 1, 2024.
General Authority: NDCC 23.1-08-03
Law Implemented: NDCC 23.1-08-03, 23.1-08-04
### § 33.1-20-08-03. Location standards.

In addition to the general location standards in section 33.1-20-04.1-01, the CCR unit must meet
the following if applicable:
1. Placement above the uppermost aquifer. New CCR landfills, existing and new CCR surface
impoundments, and all lateral expansions of CCR units must be constructed with a base that
is a minimum of five feet [1.52 meters] above the upper limit of the uppermost aquifer or
demonstrate that there will not be an intermittent, recurring, or sustained hydraulic connection
between any portion of the base of the landfill and the uppermost aquifer due to normal
fluctuations in ground water elevations, including the seasonal high water table.
a. For a new CCR landfill or surface impoundment or any lateral expansion of a CCR unit,
the demonstration that the unit meets the minimum requirements for placement above

the uppermost aquifer must be included with the application for a new permit or permit
modification.
b. The demonstration is considered complete when the demonstration is approved by the
department and placed in the facility's operating record.
c. An owner or operator of an existing CCR surface impoundment who fails to make the
demonstration shall begin closure as required by subparagraph a of paragraph 1 of
subdivision b of subsection 2 of section 33.1-20-08-07.
d. An owner or operator of a new CCR landfill, new CCR surface impoundment, or any
lateral expansion of a CCR unit who fails to make the demonstration is prohibited from
placing CCR in the CCR unit.
2. Wetlands.
a. New CCR landfills, existing and new CCR surface impoundments, and all lateral
expansions of CCR units must not be located in wetlands unless the owner or operator
demonstrates no later than the date specified in subdivision b that the CCR unit meets
the following requirements:
(1) Where applicable under section 404 of the Clean Water Act or applicable state
wetlands laws, a clear and objective rebuttal of the presumption that an alternative
to the CCR unit is reasonably available that does not involve wetlands.
(2) The construction and operation of the CCR unit will not cause or contribute to any of
the following:
(a) A violation of any applicable state or federal water quality standard;
(b) A violation of any applicable toxic effluent standard or prohibition under
section 307 of the Clean Water Act; or
(c) Jeopardize the continued existence of endangered or threatened species or
result in the destruction or adverse modification of a critical habitat, protected
under the Endangered Species Act of 1973.
(3) The CCR unit will not cause or contribute to a significant degradation of wetlands by
addressing all of the following factors:
(a) Erosion, stability, and migration potential of native wetland soils, muds, and
deposits used to support the CCR unit;
(b) Erosion, stability, and migration potential of dredged and fill materials used to
support the CCR unit;
(c) The volume and chemical nature of the CCR;
(d) Impacts on fish, wildlife, and other aquatic resources and their habitat from
release of CCR;
(e) The potential effects of catastrophic release of CCR to the wetland and the
resulting impacts on the environment; and
(f) Any additional factors, as necessary, to demonstrate that ecological resources
in the wetland are sufficiently protected.

(4) To the extent required under section 404 of the Clean Water Act or applicable state
wetlands laws, steps have been taken to attempt to achieve no net loss of wetlands,
as defined by acreage and function, by first avoiding impacts to wetlands to the
maximum extent reasonable as required by paragraphs 1 through 3 of subdivision a
of subsection 2 of section 33.1-20-08-03, then minimizing unavoidable impacts to
the maximum extent reasonable, and finally offsetting remaining unavoidable
wetland impacts through all appropriate and reasonable compensatory mitigation
actions (e.g., restoration of existing degraded wetlands or creation of man-made
wetlands); and
(5) Sufficient information is available to make a reasoned determination with respect to
the demonstrations listed in paragraphs 1 through 4.
b. The owner or operator of the CCR unit shall complete the demonstrations required by
subdivision a by the date specified in paragraph 1.
(1) For a new CCR landfill, new CCR surface impoundment, or any lateral expansion of
a CCR unit, the owner or operator shall include the demonstration with the
application for a new permit or permit modification.
(2) The demonstration is considered complete when the demonstration is approved by
the department and placed in the facility's operating record.
(3) An owner or operator of an existing CCR surface impoundment who fails to make
the demonstration showing compliance with the requirements of subdivision a is
subject to the closure requirements of paragraph 1 of subdivision b of subsection 2
of section 33.1- 20-08-07.
(4) For owners or operators of new and lateral expansions of existing CCR units that
fail to demonstrate compliance, waste is prohibited from being placed into the CCR
unit.
3. Fault areas.
a. New CCR landfills, existing and new CCR surface impoundments, and all lateral
expansions of CCR units must not be located within two hundred feet [60 meters] of the
outermost damage zone of a fault that has had displacement in Holocene time unless the
owner or operator demonstrates by the dates specified in subdivision c that an alternative
setback distance of less than two hundred feet [60 meters] will prevent damage to the
structural integrity of the CCR unit.
b. The owner or operator of the CCR unit must obtain a certification from a qualified
professional engineer or a qualified environmental professional stating that the
demonstration meets the requirements of subdivision a.
c. The owner or operator of the CCR unit shall complete the demonstration required by
subdivision a by the date specified in paragraph 1.
(1) For a new CCR landfill, new CCR surface impoundment, or any lateral expansion of
a CCR unit, the owner or operator shall include the demonstration with the
application for a new permit or permit modification.
(2) The demonstration is considered complete when the demonstration is approved by
the department and placed in the facility's operating record.
(3) An owner or operator of an existing surface impoundment who fails to make the
demonstration showing compliance with the requirements of subdivision a is subject

to the closure requirements of paragraph 1 of subdivision b of subsection 2 of
section 33.1-20-08-07.
(4) For owners or operators of new and lateral expansions of existing CCR units that
fail to demonstrate compliance, waste is prohibited from being placed into the CCR
unit.
4. Seismic impact zones.
a. New CCR landfills, existing and new CCR surface impoundments, and all lateral
expansions of CCR units must not be located in seismic impact zones unless the owner
or operator demonstrates by the dates specified in subdivision c that all structural
components, including liners, leachate collection and removal systems, and surface
water control systems, are designed to resist the maximum horizontal acceleration in
lithified earth material for the site.
b. The owner or operator of the CCR unit shall obtain a certification from a qualified
professional engineer or a qualified environmental professional stating that the
demonstration meets the requirements of subdivision a.
c. The owner or operator of the CCR unit shall complete the demonstration required by
subdivision a by the date specified in paragraph 1.
(1) For a new CCR landfill, new CCR surface impoundment, or any lateral expansion of
a CCR unit, the owner or operator shall include the demonstration with the
application for a new permit or permit modification.
(2) The demonstration is considered complete when the demonstration is approved by
the department and placed in the facility's operating record.
(3) An owner or operator of an existing surface impoundment who fails to make the
demonstration showing compliance with the requirements of subdivision a of this
subsection is subject to the closure requirements of paragraph 1 of subdivision b of
subsection 2 of section 33.1-20-08-07.
(4) For owners or operators of new and lateral expansions of existing CCR units that
fail to demonstrate compliance, waste is prohibited from being placed into the CCR
unit.
5. Unstable areas.
a. An existing or new CCR landfill, existing or new CCR surface impoundment, or any
lateral expansions of an existing CCR unit must not be located in an unstable area
unless the owner or operator demonstrates that recognized and generally accepted good
engineering practices have been incorporated into the design of the CCR unit to ensure
that the integrity of the structural components of the CCR unit will not be disrupted.
b. The owner or operator shall consider all of the following factors, at a minimum, when
determining whether an area is unstable:
(1) Onsite or local soil conditions that may result in significant differential settling;
(2) Onsite or local geologic or geomorphologic features; and
(3) Onsite or local human-made features or events (both surface and subsurface).

c. The owner or operator of the CCR unit shall obtain a certification from a qualified
professional engineer or a qualified environmental professional stating that the
demonstration meets the requirements of subdivision a.
d. The owner or operator of the CCR unit shall complete the demonstration required by
subdivision a by the date specified in paragraph 1.
(1) For a new CCR landfill or surface impoundment or any lateral expansion of a CCR
landfill or surface impoundment, the demonstration must be included with the
application for a new permit or permit modification.
(2) The demonstration is considered complete when the demonstration is approved by
the department and placed in the facility's operating record.
(3) For owners or operators of an existing CCR surface impoundment or CCR landfill
that fails to demonstrate compliance, the CCR landfill is subject to the requirements
in paragraph 1 of subdivision b of subsection 2 of section 33.1-20-08-07 or
paragraph 1 of subdivision d of subsection 2 of section 33.1-20-08-07, respectively.
(4) For owners or operators of new CCR units and lateral expansions of existing
CCR units that fail to demonstrate compliance, waste is prohibited from being
placed into the CCR landfill.
History: Effective July 1, 2020; amended effective October 1, 2024.
General Authority: NDCC 23.1-08-03
Law Implemented: NDCC 23.1-08-03, 23.1-08-04
### § 33.1-20-08-04. Design criteria.

1. New CCR landfills and any lateral expansion of a CCR landfill must be designed, constructed,
operated, and maintained with the appropriate hydraulic barrier and leachate management
system capable of collecting and removing leachate and contaminated surface water within
the disposal unit during the operating period and postclosure period.
a. Prior to construction of an overfill, the underlying CCR surface impoundment must meet
the requirements of subdivision d of subsection 3 of section 33.1-20-08-07.
b. Prior to construction of the CCR landfill or any lateral expansion of the CCR landfill, the
owner or operator shall obtain a certification from a qualified professional engineer and
approval by the department that the design of the composite liner (or, if applicable,
alternative composite liner) and the leachate collection and removal system meets the
requirements of this subsection.
c. Upon completion of construction of the CCR landfill or any lateral expansion of the CCR
landfill, the owner or operator shall obtain a certification from a qualified professional
engineer and approval by the department that the composite liner (or, if applicable,
alternative composite liner) and the leachate collection and removal system has been
constructed in accordance with the requirements of this subsection.
d. A composite liner is required. The liner must consist of at least two feet [60.9 centimeters]
of recompacted clay with a hydraulic conductivity not to exceed 1 x 10-7 centimeters per
second overlain with at least a sixty mil flexible membrane liner. The composite liner must
be:
(1) Constructed of materials that have appropriate chemical properties and sufficient
strength and thickness to prevent failure due to pressure gradients, including static
head and external hydrogeologic forces, physical contact with the CCR or leachate

to which they are exposed, climatic conditions, the stress of installation, and the
stress of daily operation;
(2) Constructed of materials that provide appropriate shear resistance of the upper and
lower component interface to prevent sliding of the upper component including on
slopes;
(3) Placed upon a foundation or base capable of providing support to the liner and
resistance to pressure gradients above and below the liner to prevent failure of the
liner due to settlement, compression, or uplift; and
(4) Installed to cover all surrounding earth likely to be in contact with the CCR or
leachate.
e. The department may consider an alternative composite liner if all of the requirements of
this subdivision are met. A certification must be obtained from a qualified professional
engineer stating that:
(1) The alternative composite liner consists of two components; the upper component
consisting of, at a minimum, a sixty-mil flexible membrane liner, and a lower
component, that is not a flexible membrane liner. If the lower component of the
alternative liner is compacted soil, the flexible membrane liner must be installed in
direct and uniform contact with the compacted soil.
(2) The liquid flow rate through the lower component of the alternative composite liner
is no greater than the liquid flow rate through two feet [60.9 centimeters] of
compacted soil with a hydraulic conductivity of 1 x 10-7 centimeters per second.
(3) The hydraulic conductivity for the two feet [60.9 centimeters] of compacted soil used
in the comparison shall be no greater than 1 x 10-7 centimeters per second.
(4) The hydraulic conductivity of any alternative to the two feet [60.9 centimeters] of
compacted soil must be determined using recognized and generally accepted good
engineering practices.
(5) The liquid flow rate comparison must be made using this equation, which is derived
from Darcy's Law for gravity flow through porous media:
Where:
Q = flow rate (cubic centimeters/second);
A = surface area of the liner (squared centimeters);
q = flow rate per unit area (cubic centimeters/second/squared centimeter);
k = hydraulic conductivity of the liner (centimeters/second);
h = hydraulic head above the liner (centimeters); and
t = thickness of the liner (centimeters).
(6) The alternative composite liner must meet the requirements specified in
paragraphs 1 through 4 of subdivision d.

f. The drainage layer must be designed and operated to minimize clogging during the
active life and post-closure care period and have a hydraulic conductivity of 1 x 10-3
centimeters per second or greater throughout. The drainage layer must have a sufficient
thickness to provide a transmissivity of 3 x 10-2 centimeters squared per second or
greater.
g. The liner and leachate removal system must be compatible with the waste and leachate.
h. The liner and leachate removal system must maintain its integrity during the operating
period and through postclosure period.
i. The system must have a collection efficiency of ninety percent or better and must be
capable of maintaining a hydraulic head of less than twelve inches [30.5 centimeters]
above the liner.
j. The liner and leachate removal system in combination with the final cover must achieve a
site efficiency of at least ninety-eight and one-half percent or better for collection or
rejection of the precipitation that falls on the site.
2. Liner design criteria for CCR surface impoundments.
a. For existing CCR surface impoundments:
(1) The owner or operator of an existing CCR surface impoundment shall include with
the application for a permit that meets the requirements of this chapter,
documentation that such CCR unit was constructed with a composite liner that
meets the requirements of subdivision d of subsection 1.
(2) The hydraulic conductivity of the compacted soil must be determined using
recognized and generally accepted good engineering practices.
(3) An existing CCR surface impoundment is considered to be an existing unlined
CCR surface impoundment if:
(a) The owner or operator of the CCR unit determines that it is not constructed
with a liner that meets the requirements of paragraph 1; or
(b) The owner or operator of the CCR unit fails to document whether the CCR unit
was constructed with a liner that meets the requirements of paragraph 1.
(4) All existing unlined CCR surface impoundments are subject to the requirements of
subdivision a of subsection 2 of section 33.1-20-08-07.
(5) The owner or operator of the CCR unit shall obtain a certification from a qualified
professional engineer and approval from the department that an existing CCR unit
meets the requirements of this section.
b. New CCR surface impoundments and lateral expansions of existing and new CCR
surface impoundments must be designed, constructed, operated, and maintained with a
composite liner that meets the requirements of subdivision d of subsection 1. The
department may consider an alternative liner that meets the requirements of
subdivision e of subsection 1:
(1) Any liner specified in this section must be installed to cover all surrounding earth
likely to be in contact with CCR. Dikes must not be constructed on top of the
composite liner.

(2) The owner or operator shall include certification from a qualified professional
engineer that the design of the composite liner or, if applicable, the design of an
alternative composite liner complies with the requirements of this section, with the
application for a new permit or permit modification.
(3) Upon completion, the owner or operator shall obtain certification from a qualified
professional engineer that the composite liner or if applicable, the alternative
composite liner has been constructed in accordance with the requirements of this
section.
3. Structural integrity criteria for existing CCR surface impoundments, new CCR surface
impoundments, and lateral expansions of CCR surface impoundments.
a. The requirements of paragraph 1 in this subdivision apply to all CCR surface
impoundments. The requirements in paragraphs 2 through 4 of this subdivision apply to
all CCR surface impoundments, except for those CCR surface impoundments that are
incised CCR units. If an incised CCR surface impoundment is subsequently modified
(e.g., a dike is constructed) such that the CCR unit no longer meets the definition of an
incised CCR unit, the CCR unit is subject to the requirements of this section.
(1) The owner or operator of the CCR unit shall place on or immediately adjacent to the
CCR unit a permanent identification marker, at least six feet [1.8 meters] high,
showing the permit number of the CCR unit, the name associated with the CCR
unit, and the name of the owner or operator of the CCR unit.
(2) Periodic hazard potential classification assessments:
(a) The owner or operator of the CCR unit shall conduct initial and periodic hazard
potential classification assessments of the CCR unit according to the time
frames specified in subdivision f. The owner or operator shall document the
hazard potential classification of each CCR unit as either a high-hazard
potential CCR surface impoundment, a significant-hazard potential CCR
surface impoundment, or a low-hazard potential CCR surface impoundment.
The owner or operator also shall document the basis for each hazard potential
classification.
(b) The owner or operator of the CCR unit shall obtain a certification from a
qualified professional engineer stating that the hazard potential classifications
specified in this section were conducted in accordance with the requirements
of this section.
(3) Emergency action plan (EAP):
(a) Development of the plan. No later than the time frames specified in
subdivision f, the owner or operator of a CCR unit determined to be either a
high-hazard potential or significant-hazard potential CCR surface
impoundment under periodic hazard potential classification assessments shall
prepare and maintain a written EAP. The original EAP and any amendments to
the EAP must be approved by the department and placed in the facility's
operating record. At a minimum, the EAP must:
[1] Define the events or circumstances involving the CCR unit that represent
a safety emergency, along with a description of the procedures that will be
followed to detect a safety emergency in a timely manner;

[2] Define responsible persons, their respective responsibilities, and
notification procedures in the event of a safety emergency involving the
CCR unit;
[3] Provide contact information of emergency responders;
[4] Include a map which delineates the downstream area that would be
affected in the event of a CCR unit failure and a physical description of
the CCR unit; and
[5] Include provisions for an annual face-to-face meeting or exercise between
representatives of the owner or operator of the CCR unit and the local
emergency responders.
(b) Amendment of the plan:
[1] The owner or operator of a CCR unit that is required to have a written
EAP may amend the written EAP at any time. The owner or operator shall
amend the written EAP whenever there is a change in conditions that
would substantially affect the EAP in effect.
[2] The written EAP must be evaluated, at a minimum, every five years to
ensure the required information is accurate. As necessary, the EAP must
be updated and a revised EAP placed in the facility's operating record.
(c) Changes in hazard potential classification:
[1] If the owner or operator of a CCR unit determines during a periodic
hazard potential assessment that the CCR unit is no longer classified as
either a high-hazard potential CCR surface impoundment or a
significant-hazard potential CCR surface impoundment, then the owner or
operator of the CCR unit is no longer subject to the requirement to
prepare and maintain a written EAP beginning on the date the periodic
hazard potential assessment documentation is placed in the facility's
operating record.
[2] If the owner or operator of a CCR unit classified as a low-hazard potential
CCR surface impoundment subsequently determines that the CCR unit is
properly reclassified as either a high-hazard potential CCR surface
impoundment or a significant-hazard potential CCR surface
impoundment, then the owner or operator of the CCR unit shall prepare a
written EAP for the CCR unit within six months of completing such
periodic hazard potential assessment.
(d) The owner or operator of the CCR unit shall submit the written EAP, and any
subsequent amendment of the EAP to the department for approval.
(e) Activation of the EAP. The EAP must be implemented once events or
circumstances involving the CCR unit that represent a safety emergency are
detected, including conditions identified during periodic structural stability
assessments, annual inspections, and inspections by a qualified person.
(4) The slopes and pertinent surrounding areas of the CCR unit must be designed,
constructed, operated, and maintained with one of the forms of slope protection
specified in subparagraph a that meets all of the performance standards of
subparagraph b.

(a) Slope protection must consist of one of the following:
[1] A vegetative cover consisting of grassy vegetation;
[2] An engineered cover consisting of a single form or combination of forms
of engineered slope protection measures; or
[3] A combination of vegetative cover and engineered cover.
(b) Any form of cover for slope protection must meet all of the following
performance standards:
[1] The cover must be installed and maintained on the slopes and pertinent
surrounding areas of the CCR unit;
[2] The cover must provide protection against surface erosion, wave action,
and adverse effects of rapid drawdown;
[3] The cover must be maintained to allow for the observation of and access
to the slopes and pertinent surrounding areas during routine and
emergency events;
[4] Woody vegetation must be removed from the slopes or pertinent
surrounding areas. Any removal of woody vegetation with a diameter
greater than one-half inch [12.7 millimeters] must be directed by a person
familiar with the design and operation of the unit and in consideration of
the complexities of removal of a tree or a shrubbery, who must ensure the
removal does not create a risk of destabilizing the unit or otherwise
adversely affect the stability and safety of the CCR unit or personnel
undertaking the removal; and
[5] The vegetative height of grassy and woody vegetation must be
maintained at a height that will not be detrimental to the native grass
cover.
b. The requirements of subdivisions c through e apply to an owner or operator of a CCR
surface impoundment that:
(1) Has a height of five feet [1.5 meters] or more and a storage volume of twenty
acre-feet [24670 cubic meters] or more; or
(2) Has a height of twenty feet [6.1 meters] or more.
c. No later than in the time frames specified in subdivision f for an existing impoundment, or
included with the application for a permit for a new CCR unit or permit modification for
lateral expansion of a CCR unit, the owner or operator of the CCR unit shall compile, to
the extent feasible, the information specified below:
(1) The name and address of the owner or operator of the CCR unit, the name
associated with the CCR unit, and the permit number.
(2) The location of the CCR unit identified on the most recent United States geological
survey 7.5-minute or 15-minute topographic quadrangle map, or a topographic map
of equivalent scale if a United States geological survey map is not available.
(3) A statement of the purpose for which the CCR unit is being used.
(4) The name and size in acres of the watershed within which the CCR unit is located.

(5) A description of the physical and engineering properties of the foundation and
abutment materials on which the CCR unit is constructed.
(6) A statement of the type, size, range, and physical and engineering properties of the
materials used in constructing each zone or stage of the CCR unit; the method of
site preparation and construction of each zone of the CCR unit; and the
approximate dates of construction of each successive stage of construction of the
CCR unit.
(7) At a scale that details engineering structures and appurtenances relevant to the
design, construction, operation, and maintenance of the CCR unit, detailed
dimensional drawings of the CCR unit, including a plan view and cross sections of
the length and width of the CCR unit, showing all zones, foundation improvements,
drainage provisions, spillways, diversion ditches, outlets, instrument locations, and
slope protection, in addition to the normal operating pool surface elevation and the
maximum pool surface elevation following peak discharge from the inflow design
flood, the expected maximum depth of CCR within the CCR surface impoundment,
and any identifiable natural or manmade features that could adversely affect
operation of the CCR unit due to malfunction or misoperation.
(8) A description of the type, purpose, and location of existing instrumentation.
(9) Area-capacity curves for the CCR unit.
(10) A description of each spillway and diversion design features and capacities and
calculations used in their determination.
(11) The construction specifications and provisions for surveillance, maintenance, and
repair of the CCR unit.
(12) Any record or knowledge of structural instability of the CCR unit.
(13) Changes to the history of construction. If there is a significant change to any
information required in this subdivision, the owner or operator of the CCR unit shall
update the relevant information, notify the department, and place it in the facility's
operating record.
d. Periodic structural stability assessments.
(1) The owner or operator of the CCR unit shall conduct initial and periodic structural
stability assessments and document whether the design, construction, operation,
and maintenance of the CCR unit is consistent with recognized and generally
accepted good engineering practices for the maximum volume of CCR and CCR
wastewater which can be impounded therein. The assessment must, at a minimum,
document whether the CCR unit has been designed, constructed, operated, and
maintained with:
(a) Stable foundations and abutments;
(b) Slope protection consistent with the requirements under paragraph 4 of
subdivision a;
(c) Dikes mechanically compacted to a density sufficient to withstand the range of
loading conditions in the CCR unit;
(d) Vegetated slopes of dikes and surrounding areas must be maintained at a
height above the slope of the dike that will not be detrimental to the native

grass cover, except for slopes which have an alternate form or forms of slope
protection;
(e) A single spillway or a combination of spillways configured as stated below. The
combined capacity of all spillways must be designed, constructed, operated,
and maintained to adequately manage flow during and following the peak
discharge from the event specified below.
[1] All spillways must be:
[a] Of nonerodible construction and designed to carry sustained flows;
or
[b] Earth- or grass-lined and designed to carry short-term, infrequent
flows at nonerosive velocities where sustained flows are not
expected.
[2] The combined capacity of all spillways must adequately manage flow
during and following the peak discharge from a:
[a] Probable maximum flood for a high-hazard potential CCR surface
impoundment;
[b] One thousand-year flood for a significant-hazard potential CCR
surface impoundment; or
[c] One hundred-year flood for a low-hazard potential CCR surface
impoundment.
(f) Hydraulic structures underlying the base of the CCR unit or passing through
the dike of the CCR unit that maintain structural integrity and are free of
significant deterioration, deformation, distortion, bedding deficiencies,
sedimentation, and debris which may negatively affect the operation of the
hydraulic structure; and
(g) For CCR units with downstream slopes which can be inundated by the pool of
an adjacent water body, such as a river, stream, or lake, downstream slopes
that maintain structural stability during low pool of the adjacent water body or
sudden drawdown of the adjacent water body.
(2) The periodic structural stability assessment described in this subdivision must
identify any structural stability deficiencies associated with the CCR unit in addition
to recommending corrective measures. If a deficiency or a release is identified
during the periodic assessment, the owner or operator of the CCR unit must remedy
the deficiency or release as soon as feasible and prepare documentation detailing
the corrective measures taken.
(3) The owner or operator of the CCR unit shall obtain a certification from a qualified
professional engineer stating that the initial assessment and each subsequent
periodic assessment was conducted in accordance with the requirements of this
section.
e. Periodic safety factor assessments.
(1) The owner or operator shall conduct an initial and periodic safety factor
assessments for each CCR unit and document whether the calculated factors of
safety for each CCR unit achieve the minimum safety factors specified below for the

critical cross section of the embankment. The critical cross section is the cross
section anticipated to be the most susceptible of all cross sections to structural
failure based on appropriate engineering considerations, including loading
conditions. The safety factor assessments must be supported by appropriate
engineering calculations.
(a) The calculated static factor of safety under the long-term, maximum storage
pool loading condition must equal or exceed 1.50.
(b) The calculated static factor of safety under the maximum surcharge pool
loading condition must equal or exceed 1.40.
(c) The calculated seismic factor of safety must equal or exceed 1.00.
(d) For dikes constructed of soils that have susceptibility to liquefaction, the
calculated liquefaction factor of safety must equal or exceed 1.20.
(e) For new CCR surface impoundments and lateral expansions of a CCR
impoundment, the calculated static factor of safety under the end-of-
construction loading condition must equal or exceed 1.30. The assessment of
this loading condition is only required for the initial safety factor assessment
and is not required for subsequent assessments.
(2) The owner or operator of the CCR unit shall obtain a certification from a qualified
professional engineer stating that the initial assessment and each subsequent
periodic assessment specified in this section meets the requirements of this section.
f. Time frames for periodic assessments.
(1) Initial assessment. Except as provided in this subdivision, the owner or operator of
an existing CCR unit shall complete and include the initial assessments required by
this section with the application for a permit, or for a new CCR unit or lateral
expansion of a CCR unit, with the application for a new permit or permit
modification. The owner or operator has completed an initial assessment when the
assessment has been approved by the department and placed in the facility's
operating record.
(2) The owner or operator of an existing CCR surface impoundment may elect to use a
previously completed assessment to serve as the initial assessment required by this
section, provided that the previously completed assessment:
(a) Was completed no earlier than April 17, 2013; and
(b) Meets the applicable requirements of this section.
(3) Frequency for conducting periodic assessments. The owner or operator of the CCR
unit shall conduct and complete the assessments required by this section every five
years. The date of completing the initial assessment is the basis for establishing the
deadline to complete the first subsequent assessment. If the owner or operator
elects to use a previously completed assessment in lieu of the initial assessment,
the date of the report for the previously completed assessment is the basis for
establishing the deadline to complete the first subsequent assessment. The owner
or operator may complete any required assessment prior to the required deadline
provided the owner or operator places the completed assessment into the facility's
operating record within a reasonable amount of time. In all cases, the deadline for
completing subsequent assessments is based on the date of completing the
previous assessment. For purposes of this section, the owner or operator has

completed an assessment if the relevant assessment has been approved by the
department and placed in the facility's operating record.
(4) Failure to document minimum safety factors during the initial assessment for new
CCR surface impoundments or lateral expansions of a CCR surface impoundment.
Until an owner or operator of a CCR unit documents that the calculated factors of
safety achieve the minimum safety factors specified in paragraph 1 of subdivision e,
the owner or operator is prohibited from placing CCR in such unit.
(5) Closure of the CCR unit. An owner or operator of a CCR unit who either fails to
complete a timely safety factor assessment or fails to demonstrate minimum safety
factors as required by this section is subject to the closure requirements of
subdivision b of subsection 2 of section 33.1-20-08-07.
History: Effective July 1, 2020; amended effective October 1, 2024.
General Authority: NDCC 23.1-08-03
Law Implemented: NDCC 23.1-08-03, 23.1-08-04
### § 33.1-20-08-05. Operating criteria.

1. Air criteria.
a. The owner or operator of a CCR landfill, CCR surface impoundment, or any lateral
expansion of a CCR unit shall adopt measures that will effectively minimize CCR from
becoming airborne at the facility, including CCR fugitive dust originating from CCR units,
roads, and other CCR management and material handling activities.
b. The CCR fugitive dust control plan. The owner or operator of the CCR unit shall prepare
and operate in accordance with a CCR fugitive dust control plan as specified in
paragraphs 1 through 6. This requirement applies in addition to, not in place of, any
applicable standards under the Occupational Safety and Health Act.
(1) The CCR fugitive dust control plan shall identify and describe the CCR fugitive dust
control measures the owner or operator will use to minimize CCR from becoming
airborne at the facility. The owner or operator shall select, and include in the CCR
fugitive dust control plan, the CCR fugitive dust control measures that are most
appropriate for site conditions, along with an explanation of how the measures
selected are applicable and appropriate for site conditions. Examples of control
measures that may be appropriate include: Locating CCR inside an enclosure or
partial enclosure; operating a water spray or fogging system; reducing fall distances
at material drop points; using wind barriers, compaction, or vegetative covers;
establishing and enforcing reduced vehicle speed limits; paving and sweeping
roads; covering trucks transporting CCR; reducing or halting operations during high
wind events; or applying a daily cover.
(2) If the owner or operator operates a CCR landfill or any lateral expansion of a CCR
landfill, the CCR fugitive dust control plan must include procedures to emplace CCR
as conditioned CCR. Conditioned CCR means wetting CCR with water to a moisture
content that will prevent wind dispersal but will not result in free liquids. In lieu of
water, CCR conditioning may be accomplished with an appropriate chemical dust
suppression agent.
(3) The CCR fugitive dust control plan must include procedures to log citizen
complaints received by the owner or operator involving CCR fugitive dust events at
the facility.

(4) The CCR fugitive dust control plan must include a description of the procedures the
owner or operator will follow to periodically assess the effectiveness of the control
plan.
(5) The owner or operator of an existing CCR unit shall include an initial CCR fugitive
dust control plan for the facility with the application for a permit. For new CCR units
or lateral expansions of CCR units, the fugitive dust control plan must be included
with the application for a new permit or permit modification. The owner or operator
has completed the initial CCR fugitive dust control plan if the plan has been
approved by the department and placed in the facility's operating record.
(6) Amendment of the plan. The owner or operator of a CCR unit subject to the
requirements of this section may amend the written CCR fugitive dust control plan at
any time with approval by the department, provided the revised plan is placed in the
facility's operating record. The owner or operator shall amend the written plan
whenever there is a change in conditions that would substantially affect the written
plan in effect, such as the construction and operation of a new CCR unit.
c. Annual CCR fugitive dust control report. The owner or operator of a CCR unit shall
prepare an annual CCR fugitive dust control report that includes a description of the
actions taken by the owner or operator to control CCR fugitive dust, a record of all citizen
complaints, and a summary of any corrective measures taken. The annual CCR fugitive
dust control report must be included with the facility's annual report required by
subsection 4 of section 33.1-20-04.1-04. For purposes of this subdivision, the owner or
operator has completed the annual CCR fugitive dust control report if the annual report
has been submitted to the department and placed in the facility's operating record.
2. Run-on and runoff controls for CCR landfills.
a. The owner or operator of an existing or new CCR landfill or any lateral expansion of a
CCR landfill shall design, construct, operate, and maintain:
(1) A run-on control system to prevent flow onto the active portion of the CCR unit
during the peak discharge from a twenty-four-hour, twenty-five-year storm; and
(2) A run-off control system from the active portion of the CCR unit to collect and control
at least the water volume resulting from a twenty-four-hour, twenty-five-year storm.
b. Run-off from the active portion of the CCR unit must be handled in accordance with the
surface water requirements in chapters 33.1-16-01 and 33.1-16-02.1.
c. Run-on and run-off control system plan:
(1) Content of the plan. The owner or operator shall prepare initial and periodic run-on
and run-off control system plans for the CCR unit according to the time frames
specified in this subsection. These plans must document how the run-on and run-off
control systems have been designed and constructed to meet the applicable
requirements of this subsection. Each plan must be supported by appropriate
engineering calculations. The owner or operator has completed the initial run-on
and run-off control system plan if the plan has been approved by the department
and placed in the facility's operating record.
(2) Amendment of the plan. The owner or operator may amend the written run-on and
run-off control system plan at any time provided the revised plan is placed in the
facility's operating record. The owner or operator shall amend the written run-on and
run-off control system plan whenever there is a change in conditions that would
substantially affect the written plan in effect.

(3) Time frames for preparing the initial plan.
(a) Existing CCR landfills. The owner or operator of the CCR unit shall include the
initial run-on and run-off control system plan with the application for a permit.
(b) New CCR landfills and any lateral expansion of a CCR landfill. The owner or
operator shall include the initial run-on and run-off control system plan with the
application for a new permit or permit modification.
(4) Frequency for revising the plan. The owner or operator of the CCR unit shall
prepare periodic run-on and run-off control system plans required by paragraph 1
every five years. The date of completing the initial plan is the basis for establishing
the deadline to complete the first subsequent plan. The owner or operator may
complete any required plan prior to the required deadline provided the owner or
operator places the completed plan into the facility's operating record within a
reasonable amount of time. In all cases, the deadline for completing a subsequent
plan is based on the date of completing the previous plan. The owner or operator
has completed a periodic run-on and run-off control system plan when the plan has
been approved by the department and placed in the facility's operating record.
3. Hydrologic and hydraulic capacity requirements for CCR surface impoundments.
a. The owner or operator of an existing or new CCR surface impoundment or any lateral
expansion of a CCR surface impoundment shall design, construct, operate, and maintain
an inflow design flood control system as specified in paragraphs 1 and 2.
(1) The inflow design flood control system must adequately manage flow into the CCR
unit during and following the peak discharge of the inflow design flood specified in
paragraph 3.
(2) The inflow design flood control system must adequately manage flow from the CCR
unit to collect and control the peak discharge resulting from the inflow design flood
specified in paragraph 3.
(3) The inflow design flood is:
(a) For a high-hazard potential CCR surface impoundment, as determined under
subdivision a of subsection 3 of section 33.1-20-08-04, the probable maximum
flood;
(b) For a significant-hazard potential CCR surface impoundment, as determined
under subdivision a of subsection 3 of section 33.1-20-08- 04, the one
thousand-year flood;
(c) For a low-hazard potential CCR surface impoundment, as determined under
subdivision a of subsection 3 of section 33.1-20-08-04, the one hundred-year
flood; or
(d) For an incised CCR surface impoundment, the twenty-five-year flood.
b. Discharge from the CCR unit must be handled in accordance with the surface water
requirements under chapters 33.1-16-01 and 33.1-16-02.1.
c. Inflow design flood control system plan:
(1) Content of the plan. The owner or operator shall prepare initial and periodic inflow
design flood control system plans for the CCR unit according to the time frames

specified in this subdivision. These plans must document how the inflow design
flood control system has been designed and constructed to meet the requirements
of this section. Each plan must be supported by appropriate engineering
calculations. The owner or operator of the CCR unit has completed the inflow
design flood control system plan when the plan has been approved by the
department and placed in the facility's operating record.
(2) Amendment of the plan. The owner or operator of the CCR unit may amend the
written inflow design flood control system plan at any time provided the revised plan
is approved by the department and placed in the facility's operating record. The
owner or operator must amend the written inflow design flood control system plan
whenever there is a change in conditions that would substantially affect the written
plan in effect.
(3) Time frames for preparing the initial plan:
(a) Existing CCR surface impoundments. The owner or operator of the CCR unit
shall include the initial inflow design flood control system plan with the
application for a permit.
(b) New CCR surface impoundments and any lateral expansion of a CCR surface
impoundment. The owner or operator shall include the initial inflow design flood
control system plan with the application for a new permit or permit modification.
(4) Frequency for revising the plan. The owner or operator shall prepare periodic inflow
design flood control system plans every five years. The date of completing the initial
plan is the basis for establishing the deadline to complete the first periodic plan. The
owner or operator may complete any required plan prior to the required deadline
provided the owner or operator places the completed plan into the facility's
operating record within a reasonable amount of time. In all cases, the deadline for
completing a subsequent plan is based on the date of completing the previous plan.
For purposes of this paragraph, the owner or operator has completed an inflow
design flood control system plan if the plan has been approved by the department
and placed in the facility's operating record.
4. Inspection requirements for CCR surface impoundments.
a. Inspections by a qualified person.
(1) All CCR surface impoundments and any lateral expansion of a CCR surface
impoundment must be examined by a qualified person as follows:
(a) Inspect at least once each calendar week for any appearances of actual or
potential structural weakness and other conditions which are disrupting or have
the potential to disrupt the operation or safety of the CCR unit;
(b) Inspect at least once each calendar week the discharge of all outlets of
hydraulic structures which pass underneath the base of the surface
impoundment or through the dike of the CCR unit for abnormal discoloration,
flow, or discharge of debris or sediment; and
(c) Monitor at least once each calendar month all CCR unit instrumentation.
(d) The results of the inspection by a qualified person must be recorded in the
facility's operating record.
(2) Time frames for inspections by a qualified person.

(a) Existing CCR surface impoundments. The owner or operator of the CCR unit
shall initiate the inspections by a qualified person no later than one week after
July 1, 2020, for weekly inspections and one month after July 1, 2020, for
monthly inspections.
(b) New CCR surface impoundments and any lateral expansion of a CCR surface
impoundment. The owner or operator of the CCR unit shall initiate the
inspections by a qualified person upon initial receipt of CCR by the CCR unit.
b. Annual inspections by a qualified professional engineer.
(1) If the existing or new CCR surface impoundment or any lateral expansion of the
CCR surface impoundment is subject to the periodic structural stability assessment
requirements under subdivision d subsection 3 of section 33.1- 20-08-04, the CCR
unit must additionally be inspected on a periodic basis by a qualified professional
engineer to ensure the design, construction, operation, and maintenance of the
CCR unit is consistent with recognized and generally accepted good engineering
practices. The inspection, at a minimum, must include:
(a) A review of available information regarding the status and condition of the CCR
unit, including files available in the operating record (e.g., CCR unit design and
construction information, previous periodic structural stability assessments, the
results of inspections by a qualified person, and results of previous annual
inspections);
(b) A visual inspection of the CCR unit to identify signs of distress or malfunction of
the CCR unit and appurtenant structures; and
(c) A visual inspection of any hydraulic structures underlying the base of the CCR
unit or passing through the dike of the CCR unit for structural integrity and
continued safe and reliable operation.
(2) Inspection report. The qualified professional engineer shall prepare a report
following each inspection that addresses:
(a) Any changes in geometry of the impounding structure since the previous
annual inspection;
(b) The location and type of existing instrumentation and the maximum recorded
readings of each instrument since the previous annual inspection;
(c) The approximate minimum, maximum, and present depth and elevation of the
impounded water and CCR since the previous annual inspection;
(d) The storage capacity of the impounding structure at the time of the inspection;
(e) The approximate volume of the impounded water and CCR at the time of the
inspection;
(f) Any appearances of an actual or potential structural weakness of the CCR unit,
in addition to any existing conditions that are disrupting or have the potential to
disrupt the operation and safety of the CCR unit and appurtenant structures;
and
(g) Any other changes which may have affected the stability or operation of the
impounding structure since the previous annual inspection.

(3) Time frames for conducting the initial inspection.
(a) Existing CCR surface impoundments. The owner or operator of the CCR unit
shall complete the initial inspection by a qualified professional engineer no
later than one year after July 1, 2020.
(b) New CCR surface impoundments and any lateral expansion of a CCR surface
impoundment. The owner or operator of the CCR unit shall complete the initial
annual inspection by a qualified professional engineer no later than fourteen
months following the date of initial receipt of CCR in the CCR unit.
(4) Frequency of inspections.
(a) Except as provided for in subparagraph b, the owner or operator of the CCR
unit shall conduct the inspections required in this section on an annual basis.
The date of completing the initial inspection report is the basis for establishing
the deadline to complete the first subsequent inspection. Any required
inspection may be conducted prior to the required deadline provided the owner
or operator places the completed inspection report into the facility's operating
record within a reasonable amount of time. In all cases, the deadline for
completing subsequent inspection reports is based on the date of completing
the previous inspection report. For purposes of this paragraph, the owner or
operator has completed an inspection if the inspection report has been
submitted to the department and placed in the facility's operating record.
(b) In any calendar year in which both the periodic inspection by a qualified
professional engineer and the quinquennial (occurring every five years)
structural stability assessment by a qualified professional engineer required by
subdivision d of subsection 3 of section 33.1-20-08-04 are required to be
completed, the annual inspection is not required, provided the structural
stability assessment is completed during the calendar year. In the year
following the quinquennial structural stability assessment, the deadline for
completing the next annual inspection is one year from the date of completing
the quinquennial structural stability assessment.
(5) If a deficiency or release is identified during an inspection, the owner or operator
shall notify the department and remedy the deficiency or release in accordance with
applicable requirements in subsections 6 through 8 of section 33.1-20-08-06.
5. Inspection requirements for CCR landfills.
a. Inspections by a qualified person.
(1) All CCR landfills and any lateral expansion of a CCR landfill must be examined by a
qualified person as follows:
(a) Inspect weekly for any appearances of actual or potential structural weakness
and other conditions that are disrupting or have the potential to disrupt the
operation or safety of the CCR unit; and
(b) The results of the inspection by a qualified person must be recorded in the
facility's operating record.
(2) Time frames for inspections by a qualified person.
(a) Existing CCR landfills. The owner or operator of the CCR unit shall initiate the
inspections by a qualified person no later than one week after July 1, 2020.

(b) New CCR landfills and any lateral expansion of a CCR landfill. The owner or
operator of the CCR unit shall initiate the inspections by a qualified person
upon initial receipt of CCR by the CCR unit.
b. Annual inspections by a qualified professional engineer.
(1) Existing and new CCR landfills and any lateral expansion of a CCR landfill must be
inspected on a periodic basis by a qualified professional engineer to ensure that the
design, construction, operation, and maintenance of the CCR unit is consistent with
recognized and generally accepted good engineering practices. The inspection
must, at a minimum, include:
(a) A review of available information regarding the status and condition of the CCR
unit, including files available in the operating record (e.g., the results of
inspections by a qualified person, and results of previous annual inspections);
and
(b) A visual inspection of the CCR unit to identify signs of distress or malfunction of
the CCR unit.
(2) Inspection report. The qualified professional engineer shall prepare a report
following each inspection that addresses the following:
(a) Any changes in geometry of the structure since the previous annual inspection;
(b) The approximate volume of CCR contained in the unit at the time of the
inspection;
(c) Any appearances of an actual or potential structural weakness of the CCR unit,
in addition to any existing conditions that are disrupting or have the potential to
disrupt the operation and safety of the CCR unit; and
(d) Any other changes which may have affected the stability or operation of the
CCR unit since the previous annual inspection.
(3) Time frames for conducting the initial inspection.
(a) Existing CCR landfills. The owner or operator of the CCR unit shall complete
the initial inspection by a qualified professional engineer no later than one year
after July 1, 2020.
(b) New CCR landfills and any lateral expansion of a CCR landfill. The owner or
operator of the CCR unit shall complete the initial annual inspection by a
qualified professional engineer no later than fourteen months following the date
of initial receipt of CCR in the CCR unit.
(4) Frequency of inspections. The owner or operator of the CCR unit shall conduct the
inspection required by this subdivision on an annual basis. The date of completing
the initial inspection report is the basis for establishing the deadline to complete the
first subsequent inspection. Any required inspection may be conducted prior to the
required deadline provided the owner or operator places the completed inspection
report into the facility's operating record within a reasonable amount of time. In all
cases, the deadline for completing subsequent inspection reports is based on the
date of completing the previous inspection report. For purposes of this paragraph,
the owner or operator has completed an inspection if the inspection report has been
submitted to the department and placed in the facility's operating record.

(5) If a deficiency or release is identified during an inspection, the owner or operator
shall notify the department and remedy the deficiency or release in accordance with
applicable requirements in subsections 6 through 8 of section 33.1-20-08-06.
History: Effective July 1, 2020; amended effective October 1, 2024.
General Authority: NDCC 23.1-08-03
Law Implemented: NDCC 23.1-08-03, 23.1-08-04
### § 33.1-20-08-06. Ground water monitoring and corrective action.

1. Applicability.
a. Existing CCR landfills, CCR surface impoundments, and lateral expansions of CCR units
are subject to the ground water monitoring and corrective action requirements of this
section.
b. Initial time frames.
(1) Existing CCR landfills and existing CCR surface impoundments. The owner or
operator of the CCR unit shall include with the permit, a ground water monitoring
plan showing compliance with the following ground water monitoring requirements:
(a) Install the ground water monitoring system as required by subsection 2;
(b) Develop the ground water sampling and analysis program to include selection
of the statistical procedures to be used for evaluating ground water monitoring
data as required by subsection 3;
(c) Initiate the detection monitoring program to include obtaining a minimum of
eight independent samples for each background and downgradient well as
required by subsection 4; and
(d) Begin evaluating the ground water monitoring data for statistically significant
increases over background levels for the constituents listed in appendix I of
this chapter as required by subsection 4.
(2) New CCR landfills, new CCR surface impoundments, and all lateral expansions of
CCR units. The owner or operator shall include a ground water monitoring plan with
the application for a new permit or permit modification to show compliance with the
ground water monitoring requirements specified in subparagraphs a and b of
paragraph 1 prior to initial receipt of CCR by the CCR unit. In addition, the owner or
operator of the CCR unit shall initiate the detection monitoring program to include
obtaining a minimum of eight independent samples for each background well as
required by subsection 4.
c. Once a ground water monitoring system and ground water monitoring program have
been established at the CCR unit as required by this section, the owner or operator shall
conduct ground water monitoring and, if necessary, corrective action throughout the
active life and postclosure care period of the CCR unit.
d. In the event of a release from a CCR unit, the owner or operator immediately shall take
all necessary measures to control the source of the release so as to reduce or eliminate,
to the maximum extent feasible, further releases of contaminants into the environment.
The owner or operator of the CCR unit shall comply with all applicable requirements in
subsections 6 through 8.

e. Annual ground water monitoring and corrective action report. For existing CCR landfills
and existing CCR surface impoundments, no later than January thirty-first of the year
following July 1, 2020, and January thirty-first of each year thereafter, the owner or
operator shall prepare an annual ground water monitoring and corrective action report.
For new CCR landfills, new CCR surface impoundments, and all lateral expansions of
CCR units, the owner or operator shall prepare the initial annual ground water monitoring
and corrective action report no later than January thirty-first of the year following the
calendar year a ground water monitoring system has been established, and January
thirty-first of each year thereafter. For the preceding calendar year, the annual report
must document the status of the ground water monitoring and corrective action program
for the CCR unit, summarize key actions completed, describe any problems
encountered, discuss actions to resolve the problems, and project key activities for the
upcoming year. For purposes of this section, the owner or operator has prepared the
annual report if the report is placed in the facility's operating record. The annual report
must be submitted to the department for approval and placed on the facility's publicly
accessible internet site by March first of each year. At a minimum, the annual ground
water monitoring and corrective action report must contain the following information, to
the extent available:
(1) A map, aerial image, or diagram showing the CCR unit and all background (or
upgradient) and downgradient monitoring wells, to include the well identification
numbers, that are part of the ground water monitoring program for the CCR unit;
(2) Identification of any monitoring wells that were installed or decommissioned during
the preceding year, along with a narrative description of why those actions were
taken;
(3) In addition to all the monitoring data obtained under this section, a summary
including the number of ground water samples that were collected for analysis for
each background and downgradient well, the dates the samples were collected, and
whether the sample was required by the detection monitoring or assessment
monitoring programs;
(4) A narrative discussion of any transition between monitoring programs (e.g., the date
and circumstances for transitioning from detection monitoring to assessment
monitoring in addition to identifying the constituents detected at a statistically
significant increase over background levels); and
(5) Other information required to be included in the annual report as specified in this
section.
(6) A section at the beginning of the annual report that provides an overview of the
current status of ground water monitoring and corrective action programs for the
CCR unit. At a minimum, the summary must specify all of the following:
(a) At the start of the current annual reporting period, whether the CCR unit was
operating under the detection monitoring program in subsection 4 or the
assessment monitoring program in subsection 5;
(b) At the end of the current annual reporting period, whether the CCR unit was
operating under the detection monitoring program in subsection 4 or the
assessment monitoring program in subsection 5;
(c) If it was determined that there was a statistically significant increase over
background for one or more constituents listed in appendix I to this chapter
pursuant to subdivision e of subsection 4:

[1] Identify those constituents listed in appendix I to this chapter and the
names of the monitoring wells associated with such an increase; and
[2] Provide the date when the assessment monitoring program was initiated
for the CCR unit.
(d) If it was determined that there was a statistically significant level above the
ground water protection standard for one or more constituents listed in
appendix II to this chapter pursuant to subdivision g of subsection 5 include all
of the following:
[1] Identify the constituents listed in appendix II to this chapter and the
names of the monitoring wells associated with such an increase;
[2] Provide the date when the assessment of corrective measures was
initiated for the CCR unit;
[3] Provide the date when the public meeting was held for the assessment of
corrective measures for the CCR unit; and
[4] Provide the date when the assessment of corrective measures was
completed for the CCR unit.
(e) Whether a remedy was selected pursuant to subsection 7 during the current
annual reporting period, and if so, the date of remedy selection; and
(f) Whether remedial activities were initiated or are ongoing pursuant to
subsection 8 during the current annual reporting period.
2. Ground water monitoring systems.
a. Performance standard. The owner or operator of a CCR unit shall install a ground water
monitoring system that consists of a sufficient number of wells, installed at appropriate
locations and depths, to yield ground water samples from the uppermost aquifer that:
(1) Accurately represent the quality of background ground water that has not been
affected by leakage from a CCR unit. A determination of background quality may
include sampling of wells that are not hydraulically upgradient of the CCR
management area where:
(a) Hydrogeologic conditions do not allow the owner or operator of the CCR unit to
determine what wells are hydraulically upgradient; or
(b) Sampling at other wells will provide an indication of background ground water
quality that is as representative or more representative than that provided by
the upgradient wells; and
(2) Accurately represent the quality of ground water passing the waste boundary of the
CCR unit. The downgradient monitoring system must be installed at the waste
boundary that ensures detection of ground water contamination in the uppermost
aquifer. All potential contaminant pathways must be monitored.
b. The number, spacing, and depths of monitoring systems shall be determined based upon
site-specific technical information that must include thorough characterization of:
(1) Aquifer thickness, ground water flow rate, ground water flow direction including
seasonal and temporal fluctuations in ground water flow; and

(2) Saturated and unsaturated geologic units and fill materials overlying the uppermost
aquifer, materials comprising the uppermost aquifer, and materials comprising the
confining unit defining the lower boundary of the uppermost aquifer, including
thicknesses, stratigraphy, lithology, hydraulic conductivities, porosities, and effective
porosities.
c. The ground water monitoring system must include the minimum number of monitoring
wells necessary to meet the performance standards specified in subdivision a, based on
the site-specific information specified in subdivision b. The ground water monitoring
system must contain:
(1) A minimum of one upgradient and three downgradient monitoring wells; and
(2) Additional monitoring wells as necessary to accurately represent the quality of
background ground water that has not been affected by leakage from the CCR unit
and the quality of ground water passing the waste boundary of the CCR unit.
d. The owner or operator of multiple CCR units may install a multiunit ground water
monitoring system instead of separate ground water monitoring systems for each CCR
unit. The multiunit ground water monitoring system must be equally as capable of
detecting monitored constituents at the waste boundary of the CCR unit as the individual
ground water monitoring system for each CCR unit based on the following factors:
(1) Number, spacing, and orientation of each CCR unit;
(2) Hydrogeologic setting;
(3) Site history; and
(4) Engineering design of the CCR unit.
e. Monitoring wells must be cased in a manner that maintains the integrity of the monitoring
well borehole. This casing must be screened or perforated and packed with gravel or
sand, where necessary, to enable collection of ground water samples. The annular space
(i.e., the space between the borehole and well casing) above the sampling depth must be
sealed to prevent contamination of samples and the ground water.
(1) The owner or operator of the CCR unit shall document and include in the ground
water monitoring plan and the operating record the design, installation,
development, and decommissioning of any monitoring wells; piezometers; and other
measurement, sampling, and analytical devices.
(2) The monitoring wells; piezometers; and other measurement, sampling, and
analytical devices must be operated and maintained so that they perform to the
design specifications throughout the life of the monitoring program.
f. The owner or operator shall provide documentation in the ground water monitoring plan
that the ground water monitoring system has been designed and constructed to meet the
requirements of this section. If the ground water monitoring system includes the minimum
number of monitoring wells specified in this subsection, the ground water monitoring plan
must document the basis for supporting this determination. Any proposed changes to the
ground water monitoring plan must be submitted to, and approved by, the department.
3. Ground water sampling and analysis requirements.
a. The ground water monitoring program must include consistent sampling and analysis
procedures that are designed to ensure monitoring results that provide an accurate

representation of ground water quality at the background and downgradient wells. The
owner or operator of the CCR unit must develop a sampling and analysis program that
includes procedures and techniques for:
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures;
(4) Chain of custody control; and
(5) Quality assurance and quality control.
b. The ground water monitoring program must include sampling and analytical methods that
are appropriate for ground water sampling and that accurately measure hazardous
constituents and other monitoring parameters in ground water samples. For purposes of
this section, the term constituent refers to both hazardous constituents and other
monitoring parameters listed in either appendix I or II of this chapter.
c. Ground water elevations must be measured in each well immediately prior to purging,
each time ground water is sampled. The owner or operator of the CCR unit shall
determine the rate and direction of ground water flow each time ground water is sampled.
Ground water elevations in wells which monitor the same CCR management area must
be measured within a period of time short enough to avoid temporal variations in ground
water flow which could preclude accurate determination of ground water flow rate and
direction.
d. The owner or operator of the CCR unit shall establish background ground water quality in
hydraulically upgradient or background wells for each of the constituents required in the
particular ground water monitoring program that applies to the CCR unit as determined
under subsections 4 or 5. Background ground water quality may be established at wells
that are not located hydraulically upgradient from the CCR unit if it meets the
requirements of paragraph 1 of subdivision a of subsection 2.
e. The number of samples collected when conducting detection monitoring and assessment
monitoring, for both downgradient and background wells, must be consistent with the
statistical procedures chosen under subdivision f and the performance standards under
subdivision g of this subsection. The sampling procedures must be those specified under
subsection 4 for detection monitoring, subsection 5 for assessment monitoring, and
subsection 6 for corrective action monitoring.
f. The owner or operator of the CCR unit shall select one of the statistical methods
specified in paragraphs 1 through 5 to be used in evaluating ground water monitoring
data for each specified constituent. The statistical test chosen must be conducted
separately for each constituent in each monitoring well.
(1) A parametric analysis of variance followed by multiple comparison procedures to
identify statistically significant evidence of contamination. The method must include
estimation and testing of the contrasts between each compliance well's mean and
the background mean levels for each constituent.
(2) An analysis of variance based on ranks followed by multiple comparison procedures
to identify statistically significant evidence of contamination. The method must
include estimation and testing of the contrasts between each compliance well's
median and the background median levels for each constituent.

(3) A tolerance or prediction interval procedure, in which an interval for each constituent
is established from the distribution of the background data and the level of each
constituent in each compliance well is compared to the upper tolerance or prediction
limit.
(4) A control chart approach that gives control limits for each constituent.
(5) Another statistical test method that meets the performance standards of
subdivision g.
(6) The owner or operator of the CCR unit shall include documentation in the ground
water monitoring plan showing that the selected statistical method is appropriate for
evaluating the ground water monitoring data for the CCR management area. The
documentation must include a narrative description of the statistical method
selected to evaluate the ground water monitoring data.
g. Any statistical method chosen must comply with the following performance standards, as
appropriate, based on the statistical test method used:
(1) The statistical method used to evaluate ground water monitoring data must be
appropriate for the distribution of constituents. Normal distributions of data values m
use parametric methods. Nonnormal distributions must use nonparametric methods.
If the distribution of the constituents is shown by the owner or operator of the CCR
unit to be inappropriate for a normal theory test, then the data must be transformed
or a distribution-free (nonparametric) theory test must be used. If the distributions
for the constituents differ, more than one statistical method may be needed.
(2) If an individual well comparison procedure is used to compare an individual
compliance well constituent concentration with background constituent
concentrations or a ground water protection standard, the test must be done at a
type I error level no less than 0.01 for each testing period. If a multiple comparison
procedure is used, the type I experiment wise error rate for each testing period must
be no less than 0.05; however, the type I error of no less than 0.01 for individual well
comparisons must be maintained. This performance standard does not apply to
tolerance intervals, prediction intervals, or control charts.
(3) If a control chart approach is used to evaluate ground water monitoring data, the
specific type of control chart and its associated parameter values must be such that
this approach is at least as effective as any other approach in this section for
evaluating ground water data. The parameter values must be determined after
considering the number of samples in the background database, the data
distribution, and the range of the concentration values for each constituent of
concern.
(4) If a tolerance interval or a predictional interval is used to evaluate ground water
monitoring data, the levels of confidence and, for tolerance intervals, the percentage
of the population that the interval must contain, must be such that this approach is
at least as effective as any other approach in this section for evaluating ground
water data. These parameters must be determined after considering the number of
samples in the background database, the data distribution, and the range of the
concentration values for each constituent of concern.
(5) The statistical method must account for data below the limit of detection with one or
more statistical procedures that shall be at least as effective as any other approach
in this section for evaluating ground water data. Any practical quantization limit that
is used in the statistical method must be the lowest concentration level that can be

reliably achieved within specified limits of precision and accuracy during routine
laboratory operating conditions that are available to the facility.
(6) If necessary, the statistical method must include procedures to control or correct for
seasonal and spatial variability as well as temporal correlation in the data.
h. The owner or operator of the CCR unit shall determine if there is a statistically significant
increase over background values for each constituent required in the particular ground
water monitoring program that applies to the CCR unit.
(1) In determining whether a statistically significant increase has occurred, the owner or
operator shall compare the ground water quality of each constituent at each
downgradient monitoring well to the background value of that constituent, according
to the statistical procedures and performance standards specified under
subdivisions f and g.
(2) Within ninety days after completing sampling and analysis, the owner or operator
shall determine whether there has been a statistically significant increase over
background for any constituent at each monitoring well.
i. The owner or operator shall measure "total recoverable metals" concentrations in
measuring ground water quality. Measurement of total recoverable metals captures both
the particulate fraction and dissolved fraction of metals in natural waters. Ground water
samples may not be field-filtered prior to analysis.
4. Detection monitoring program.
a. The owner or operator of a CCR unit shall conduct detection monitoring at all ground
water monitoring wells consistent with this subsection. At a minimum, a detection
monitoring program must include ground water monitoring for all constituents listed in
appendix I to this chapter.
b. Except as provided in subdivision d, the monitoring frequency for the constituents listed
in appendix I to this chapter must be at least semiannual during the active life of the CCR
unit and the postclosure period. For existing CCR landfills and existing CCR surface
impoundments, a minimum of eight independent samples from each background and
downgradient well must be collected and analyzed for the constituents listed in
appendices I and II to this chapter no later than six months after July 1, 2020. For new
CCR landfills, new CCR surface impoundments, and all lateral expansions of CCR units,
a minimum of eight independent samples for each background well must be collected
and analyzed for the constituents listed in appendices I and II to this chapter during the
first six months of sampling, if not already completed.
c. The number of samples collected and analyzed for each background well and
downgradient well during subsequent semiannual sampling events must be consistent
with subdivision e of subsection 3 and must account for any unique characteristics of the
site, but must be at least one sample from each background and downgradient well.
d. The owner or operator of a CCR unit may demonstrate the need for an alternative
monitoring frequency for repeated sampling and analysis for constituents listed in
appendix I to this chapter during the active life and the postclosure care period based on
the availability of ground water. If there is not adequate ground water flow to sample
wells semiannually, the alternative frequency must be no less than annual. The need to
vary monitoring frequency shall be evaluated on a site-specific basis and approved by
the department.

(1) The demonstration must be supported by information documenting that the need for
less frequent sampling. The alternative frequency must be based on consideration
of the following factors:
(a) Lithology of the aquifer and unsaturated zone;
(b) Hydraulic conductivity of the aquifer and unsaturated zone; and
(c) Ground water flow rates.
(2) The demonstration must be supported by information documenting that the
alternative frequency will be no less effective in ensuring that any leakage from the
CCR unit will be discovered within a time frame that will not materially delay
establishment of an assessment monitoring program.
(3) The owner or operator must obtain approval by the department for an alternative
ground water sampling and analysis frequency. The owner or operator shall include
the demonstration providing the basis for the alternative monitoring frequency in the
annual ground water monitoring and corrective action report required by this
section.
e. If the owner or operator of the CCR unit determines there is a statistically significant
increase over background levels for one or more of the constituents listed in appendix I
to this chapter at any monitoring well at the waste boundary the owner or operator shall:
(1) Except as provided for in paragraph 2, within ninety days of detecting a statistically
significant increase over background levels for any constituent, notify the
department and establish an assessment monitoring program meeting the
requirements of subsection 5.
(2) The owner or operator may demonstrate that a source other than the CCR unit
caused the statistically significant increase over background levels for a constituent
or that the statistically significant increase resulted from error in sampling, analysis,
statistical evaluation, or natural variation in ground water quality. The owner or
operator shall complete the written demonstration within ninety days of detecting a
statistically significant increase over background levels. If a successful
demonstration is completed within the ninety-day period, the owner or operator of
the CCR unit shall continue with a detection monitoring program under this section,
with approval by the department. If a successful demonstration is not completed
within the ninety-day period, the owner or operator of the CCR unit shall initiate an
assessment monitoring program as required under subsection 5. The owner or
operator also shall include the demonstration in the annual ground water monitoring
and corrective action report.
(3) The owner or operator of a CCR unit shall prepare a notification stating that an
assessment monitoring program has been established. The owner or operator has
completed the notification if the notification is submitted to the department and
placed in the facility's operating record.
5. Assessment monitoring program.
a. Assessment monitoring is required whenever a statistically significant increase over
background levels has been detected for one or more of the constituents listed in
appendix I to this chapter.
b. Within ninety days of triggering an assessment monitoring program, and annually
thereafter, the owner or operator of the CCR unit shall sample and analyze the ground

water for all constituents listed in appendix II to this chapter. The number of samples
collected and analyzed for each well during each sampling event must be consistent with
subdivision e of subsection 3, and must account for any unique characteristics of the site,
but must be at least one sample from each well.
c. The owner or operator of a CCR unit may demonstrate the need for an alternative
monitoring frequency for repeated sampling and analysis for constituents listed in
appendix II to this chapter during the active life and the postclosure care period based on
the availability of ground water. If there is not adequate ground water flow to sample
wells semiannually, the alternative frequency shall be no less than annual. The need to
vary monitoring frequency must be evaluated on a site-specific basis.
(1) The demonstration must be supported by information documenting the need for less
frequent sampling. The alternative frequency must be based on consideration of the
following factors:
(a) Lithology of the aquifer and unsaturated zone;
(b) Hydraulic conductivity of the aquifer and unsaturated zone; and
(c) Ground water flow rates.
(2) The demonstration must be supported by information documenting that the
alternative frequency will be no less effective in ensuring that any leakage from the
CCR unit will be discovered within a time frame that will not materially delay the
initiation of any necessary remediation measures.
(3) The owner or operator shall obtain approval by the department for an alternative
ground water sampling and analysis frequency. The owner or operator shall include
the demonstration providing the basis for the alternative monitoring frequency in the
annual ground water monitoring and corrective action report required by this
section.
d. After obtaining the results from the initial and subsequent sampling events required in
subdivision b, the owner or operator shall:
(1) Within ninety days of obtaining the results, and on at least a semiannual basis
thereafter, resample all wells in the monitoring system, conduct analyses for all
parameters in appendices I and II to this chapter that are detected in response to
subdivision b, and record their concentrations in the facility operating record. The
number of samples collected and analyzed for each background well and
downgradient well during subsequent semiannual sampling events must be
consistent with subdivision e of subsection 3, and must account for any unique
characteristics of the site, but must be at least one sample from each background
and downgradient well;
(2) Establish ground water protection standards for all constituents detected pursuant to
subdivision b or d. The ground water protection standards must be established in
accordance with subdivision h of this subsection; and
(3) Include the recorded concentrations required by the assessment monitoring
program, identify the background concentrations established under the detection
monitoring program, and identify the ground water protection standards in the
annual ground water monitoring and corrective action report.
e. If the concentrations of all constituents listed in appendices I and II to this chapter are
shown to be at or below background values, using the statistical procedures in

subdivision g of subsection 3, for two consecutive sampling events, the owner or
operator may return to detection monitoring of the CCR unit with approval by the
department. The owner or operator shall prepare a notification stating that detection
monitoring is resuming for the CCR unit. The owner or operator has completed the
notification if the notification is submitted to the department and placed in the facility's
operating record.
f. If the concentrations of any constituent in appendices I and II to this chapter are above
background values, but all concentrations are below the established ground water
protection standard, using the statistical procedures in subdivision g or subsection 3, the
owner or operator must continue assessment monitoring in accordance with this section.
g. If one or more constituents in appendix II to this chapter are detected at statistically
significant levels above the established ground water protection standard in any sampling
event, the owner or operator shall prepare a notification identifying the constituents in
appendix II to this chapter that have exceeded the ground water protection standard. The
owner or operator has completed the notification when the notification is submitted to the
department and placed in the facility's operating record.
(1) The owner or operator of the CCR unit also shall characterize the nature and extent
of the release and any relevant site conditions that may affect the remedy ultimately
selected. The characterization must be sufficient to support a complete and
accurate assessment of the corrective measures necessary to effectively clean up
all releases from the CCR unit pursuant to subsection 6. Characterization of the
release includes the following minimum measures:
(a) Install additional monitoring wells necessary to define the contaminant plume
or plumes;
(b) Collect data on the nature and estimated quantity of material released
including specific information on the constituents listed in appendix II to this
chapter and the levels at which they are present in the material released;
(c) Install at least one additional monitoring well at the facility boundary in the
direction of contaminant migration and sample this well in accordance with
paragraph 1 of subdivision d; and
(d) Sample all wells in accordance with paragraph 1 of subdivision d to
characterize the nature and extent of the release.
(2) The owner or operator of the CCR unit also shall notify all persons who own the
land or reside on the land that directly overlies any part of the plume of
contamination if contaminants have migrated offsite. The owner or operator has
completed the notifications when they are placed in the facility's operating record.
(3) Within ninety days of finding that any of the constituents listed in appendix II to this
chapter have been detected at a statistically significant level exceeding the ground
water protection standards the owner or operator must either:
(a) Initiate an assessment of corrective measures as required by subsection 6; or
(b) Demonstrate that a source other than the CCR unit caused the contamination,
or that the statistically significant increase resulted from error in sampling,
analysis, statistical evaluation, or natural variation in ground water quality. Any
such demonstration must be supported by a report that includes the factual or
evidentiary basis for any conclusions and must be approved by the
department. If a successful demonstration is made, the owner or operator shall

continue monitoring in accordance with the assessment monitoring program
pursuant to this subsection and may return to detection monitoring if the
constituents in appendices I and II to this chapter are at or below the
established background. The owner or operator also shall include the
demonstration in the annual ground water monitoring and corrective action
report.
(4) If a successful demonstration has not been made at the end of the ninety-day period
provided by subparagraph b of paragraph 3, the owner or operator of the CCR unit
shall initiate the assessment of corrective measures requirements under
subsection 6.
h. The ground water protection standard for each constituent in appendix II to this chapter
detected in the ground water must be:
(1) The maximum contaminant level for constituents for which a maximum contaminant
level has been established under chapter 33.1-17-01; or
(2) The background concentration for constituents for which the background level is
higher than the maximum contaminant level or the levels identified in paragraph 2 of
this subdivision.
6. Assessment of corrective measures.
a. Within ninety days of finding that any constituent listed in appendix II to this chapter has
been detected at a statistically significant level exceeding the ground water protection
standard, or immediately upon detection of a release from a CCR unit, the owner or
operator shall initiate an assessment of corrective measures to prevent further releases,
to remediate any releases and to restore affected areas to original conditions. The
assessment of corrective measures must be completed within ninety days, unless the
owner or operator demonstrates the need for additional time to complete the assessment
of corrective measures due to site-specific conditions or circumstance and obtains
approval by the department. The ninety-day deadline to complete the assessment of
corrective measures may be extended for no longer than sixty days. The owner or
operator also shall include the demonstration and approval in the annual ground water
monitoring and corrective action report.
b. The owner or operator of the CCR unit shall continue to monitor ground water in
accordance with the assessment monitoring program.
c. The assessment of corrective measures must include an analysis of the effectiveness of
potential corrective measures in meeting all of the requirements and objectives of the
remedy as described under subsection 7, addressing at least the following:
(1) The performance, reliability, ease of implementation, and potential impacts of
appropriate potential remedies, including safety impacts, cross-media impacts, and
control of exposure to any residual contamination;
(2) The time required to begin and complete the remedy; and
(3) The institutional requirements, such as state or local permit requirements or other
environmental or public health requirements that may substantially affect
implementation of the remedy.
d. The assessment has been completed if it is approved by the department and placed in
the facility's operating record.

e. The owner or operator shall discuss the results of the corrective measures assessment
at least thirty days prior to the selection of remedy, in a public meeting with interested
and affected parties.
7. Selection of remedy.
a. Based on the results of the corrective measures assessment, the owner or operator
shall, as soon as feasible, select a remedy. This requirement applies to, not in place of,
any applicable standards under the Occupational Safety and Health Act of 1970 [Public
Law 91-596; 84 Stat. 1590]. The owner or operator shall prepare a semiannual report
describing the progress in selecting and designing the remedy. Upon selection of a
remedy, the owner or operator shall prepare a final report describing the selected remedy
and how it meets the standards specified in this subsection. The report has been
completed when it is approved by the department and placed in the operating record.
b. Remedies must:
(1) Be protective of human health and the environment;
(2) Attain the ground water protection standard as specified pursuant to subdivision h of
subsection 5;
(3) Control the sources of releases so as to reduce or eliminate, to the maximum extent
feasible, further releases of constituents in appendix II to this chapter into the
environment;
(4) Remove from the environment as much of the contaminated material that was
released from the CCR unit as is feasible, taking into account factors such as
avoiding inappropriate disturbance of sensitive ecosystems;
(5) Comply with standards for management of wastes as specified in subdivision d of
subsection 8.
c. In selecting a remedy that meets the standards of this subsection, the owner or operator
of the CCR unit shall consider the following evaluation factors:
(1) The long- and short-term effectiveness and protectiveness of the potential
remedies, along with the degree of certainty that the remedy will prove successful
based on consideration of the following:
(a) Magnitude of reduction of existing risks;
(b) Magnitude of residual risks in terms of likelihood of further releases due to
CCR remaining following implementation of a remedy;
(c) The type and degree of long-term management required, including monitoring,
operation, and maintenance;
(d) Short-term risks that might be posed to the community or the environment
during implementation of such a remedy, including potential threats to human
health and the environment associated with excavation, transportation, and
redisposal of contaminant;
(e) Time until full protection is achieved;
(f) Potential for exposure of humans and environmental receptors to remaining
wastes, considering the potential threat to human health and the environment
associated with excavation, transportation, redisposal, or containment;

(g) Long-term reliability of the engineering and institutional controls; and
(h) Potential need for replacement of the remedy.
(2) The effectiveness of the remedy in controlling the source to reduce further releases
based on consideration of the following factors:
(a) The extent to which containment practices will reduce further releases; and
(b) The extent to which treatment technologies may be used.
(3) The ease or difficulty of implementing a potential remedy based on consideration of
the following types of factors:
(a) Degree of difficulty associated with constructing the technology;
(b) Expected operational reliability of the technologies;
(c) Need to coordinate with and obtain necessary approvals and permits from
other agencies;
(d) Availability of necessary equipment and specialists; and
(e) Available capacity and location of needed treatment, storage, and disposal
services.
(4) The degree to which community concerns are addressed by a potential remedy.
d. The owner or operator shall specify as part of the selected remedy a schedule for
implementing and completing remedial activities. Such a schedule must require the
completion of remedial activities within a reasonable period of time, taking into
consideration:
(1) Extent and nature of contamination;
(2) Reasonable probabilities of remedial technologies in achieving compliance with
ground water protection standards and other objectives of the remedy;
(3) Availability of treatment or disposal capacity for CCR managed during
implementation of the remedy;
(4) Potential risks to human health and the environment from exposure to
contamination prior to completion of the remedy;
(5) Resource value of the aquifer, including:
(a) Current and future uses;
(b) Proximity and withdrawal rate of users;
(c) Ground water quantity and quality;
(d) The potential damage to wildlife, crops, vegetation, and physical structures
caused by exposure to CCR constituents;
(e) The hydrogeologic characteristic of the facility and surrounding land; and
(f) The availability of alternative water supplies; and

(6) Other relevant factors.
8. Implementation of the corrective action program.
a. Within ninety days of selecting a remedy under subsection 7, the owner or operator shall
initiate remedial activities. Based on the schedule established under subdivision d of
subsection 7, for implementation and completion of remedial activities the owner or
operator shall:
(1) Establish and implement a corrective action ground water monitoring program that:
(a) Meets the requirements of an assessment monitoring program under
subsection 5;
(b) Documents the effectiveness of the corrective action remedy; and
(c) Demonstrates compliance with the ground water protection standards.
(2) Implement the selected corrective action remedy; and
(3) Take any interim measures necessary to reduce the contaminants leaching from the
CCR unit and potential exposures to human or ecological receptors. Interim
measures must, to the greatest extent feasible, be consistent with the objectives of,
and contribute to the performance of, any remedy that may be required pursuant to
subsection 7. The following factors must be considered by an owner or operator in
determining whether interim measures are necessary:
(a) Time required to develop and implement a final remedy;
(b) Actual or potential exposure of nearby populations or environmental receptors
to any of the constituents listed in appendix II to this chapter;
(c) Actual or potential contamination of drinking water supplies or sensitive
ecosystems;
(d) Further degradation of the ground water that may occur if remedial action is
not initiated expeditiously;
(e) Weather conditions that may cause any of the constituents listed in appendix II
to this chapter to migrate or be released;
(f) Potential for exposure to any of the constituents listed in appendix II to this
chapter as a result of an accident or failure of a container or handling system;
and
(g) Other situations that may pose threats to human health and the environment.
b. If an owner or operator of the CCR unit, determines, at any time, that compliance with the
requirements of subdivision b of subsection 7 is not being achieved through the remedy
selected, the owner or operator shall implement other methods or techniques that could
feasibly achieve compliance with the requirements.
c. Remedies selected pursuant to subsection 7 must be considered complete if:
(1) The owner or operator of the CCR unit demonstrates that compliance with the
ground water protection standards has been achieved at all points within the plume
of contamination that lie beyond the ground water monitoring well system
established under subsection 2;

(2) Compliance with the ground water protection standards has been achieved by
demonstrating that concentrations of constituents listed in appendix II to this chapter
have not exceeded the ground water protection standards for a period of three
consecutive years using the statistical procedures and performance standards in
subdivisions f and g of subsection 3; and
(3) All actions required to complete the remedy have been satisfied.
d. All CCR that are managed pursuant to a remedy required under subsection 7, or an
interim measure required under paragraph 3 of subdivision a, shall be managed in a
manner that complies with all applicable requirements under this article and North
Dakota Century Code chapter 23.1-08.
e. Upon completion of the remedy, the owner or operator shall prepare a notification stating
that the remedy has been completed. The owner or operator shall obtain a certification
from a qualified professional engineer or a qualified environmental professional that the
remedy has been completed. The report has been completed if it is approved by the
department and placed in the operating record.
History: Effective July 1, 2020; amended effective October 1, 2024.
General Authority: NDCC 23.1-08-03
Law Implemented: NDCC 23.1-08-03, 23.1-08-04
### § 33.1-20-08-07. Closure and postclosure care.

1. Inactive CCR surface impoundments.
a. Inactive CCR surface impoundments are subject to all of the requirements of this chapter
applicable to existing CCR surface impoundments.
b. The owner or operator of an inactive CCR surface impoundment shall include
documentation of the requirements of this subdivision with the permit application required
by subsection 9 of section 33.1-20-08-02.
(1) Recordkeeping, notification, and internet requirements. The owner and operator
shall:
(a) Prepare and place a notification of intent to initiate closure of the inactive CCR
surface impoundment in the facility's operating record;
(b) Provide notification of the intent to initiate closure of the inactive CCR surface
impoundment to the department; and
(c) Place the notification of intent to initiate closure of the inactive CCR surface
impoundment on its CCR website.
(2) Location restrictions.
(a) The owner or operator of the inactive CCR surface impoundment shall:
[1] Complete the demonstration for placement above the uppermost aquifer
as set forth by subsection 1 of section 33.1-20-08-03;
[2] Complete the demonstration for wetlands as set forth by subsection 2 of
section 33.1-20-08-03;
[3] Complete the demonstration for fault areas as set forth by subsection 3 of
section 33.1-20-08-03;

[4] Complete the demonstration for seismic impact zones as set forth by
subsection 4 of section 33.1-20-08-03;
[5] Complete the demonstration for unstable areas as set forth by
subsection 5 of section 33.1-20-08-03.
(b) An owner or operator of an inactive CCR surface impoundment who fails to
demonstrate compliance with the requirements of subparagraph a is subject to
the closure requirements of paragraph 1 of subdivision b of subsection 2.
(3) Design criteria. The owner or operator of the inactive CCR surface impoundment
shall:
(a) Complete the documentation of liner type as set forth by subdivision a of
subsection 2 of section 33.1-20-08-04.
(b) Place on or immediately adjacent to the CCR unit the permanent identification
marker as set forth by paragraph 1 of subdivision a of subsection 3 of section
33.1-20-08-04.
(c) Prepare and maintain an emergency action plan as set forth by paragraph 3 of
subdivision a of subsection 3 of section 33.1-20-08-04.
(d) Compile information relating to construction as set forth by subdivision c of
subsection 3 of section 33.1-20-08-04.
(e) Complete the initial hazard potential classification, structural stability, and
safety factor assessments as set forth by paragraph 2 of subdivision a and
subdivisions d and e of subsection 3 of section 33.1-20-08-04.
(4) Operating criteria. The owner or operator of the inactive CCR surface impoundment
shall:
(a) Prepare the initial CCR fugitive dust control plan as set forth in subsection 1 of
section 33.1-20-08-05.
(b) Prepare the initial inflow design flood control system plan as set forth in
subsection 3 of section 33.1-20-08-05.
(c) Initiate the inspections by a qualified person as set forth by subsection 4 of
section 33.1-20-08-05.
(d) Complete the initial annual inspection by a qualified professional engineer set
forth in subsection 4 of section 33.1-20-08-05.
(5) Ground water monitoring and corrective action. The owner or operator of the
inactive CCR surface impoundment shall:
(a) Comply with ground water monitoring requirements set forth in subdivision b of
subsection 1 of section 33.1-20-08-06 and subdivision b of subsection 4 of
section 33.1-20-08-06; and
(b) Prepare the initial ground water monitoring and corrective action report as set
forth in subdivision e of subsection 1 of section 33.1-20-08-06.
(6) Closure and postclosure care. The owner or operator of the inactive CCR surface
impoundment shall:

(a) Prepare an initial written closure plan as set forth in subdivision b of
subsection 3; and
(b) Prepare an initial written postclosure care plan as set forth in subdivision d of
subsection 5.
2. Closure or retrofit of CCR units.
a. [Reserved].
b. The owner or operator of an existing CCR surface impoundment is subject to the
requirements of paragraph 1.
(1) Noncompliance with location standards.
(a) [Reserved].
(b) Wetlands, fault areas, seismic impact zones and unstable areas. Except as
provided by paragraph 4, within six months of determining that an existing
CCR surface impoundment has not demonstrated compliance with any
location standard specified in subsections 2 through 5 of section
33.1-20-08-03, the owner or operator of the CCR surface impoundment shall
cease placing CCR and non-CCR waste streams into such CCR unit and close
the CCR unit in accordance with the requirements of subsection 3.
(2) Within six months of failing to complete the initial or any subsequent periodic safety
factor assessment required by subdivision e of subsection 3 of section
existing CCR surface impoundment achieve the minimum safety factors specified in
subdivision e of subsection 3 of section 33.1-20-08-04, the owner or operator of the
CCR surface impoundment shall cease placing CCR and non-CCR waste streams
into such CCR unit and close the CCR unit in accordance with the requirements of
subsection 3.
(3) An owner or operator of an existing CCR surface impoundment that closes in
accordance with paragraphs 1 or 2 shall include a statement in the closure
notification required under subdivision g of subsection 3 that the CCR surface
impoundment is closing under the requirements.
(4) The time frame specified in paragraph 1 does not apply if the owner or operator
complies with the alternative closure procedures specified in subsection 4.
c. The owner or operator of a new CCR surface impoundment is subject to the
requirements of paragraph 1.
(1) Within six months of either failing to complete the initial or any subsequent periodic
safety factor assessment required by subdivision e of subsection 3 of section
CCR surface impoundment achieve the minimum safety factors specified in
subdivision e of subsection 3 of section 33.1-20-08-04, the owner or operator of the
CCR surface impoundment must cease placing CCR and non-CCR waste streams
into such CCR unit and close the CCR unit in accordance with the requirements of
subsection 3.

(2) An owner or operator of a new CCR surface impoundment that closes in
accordance with paragraph 1 shall include a statement in the closure notification
required under subdivision g of subsection 3 that the CCR surface impoundment is
closing under the requirements of this subdivision.
d. The owner or operator of an existing CCR landfill is subject to the requirements of
paragraph 1.
(1) Except as provided by paragraph 3, within six months of determining that an
existing CCR landfill has not demonstrated compliance with the location restriction
for unstable areas specified in subsection 5 of section 33.1-20-08- 03, the owner or
operator of the CCR unit must cease placing CCR and non-CCR waste streams into
that landfill and close the CCR unit in accordance with the requirements of
subsection 3.
(2) An owner or operator of an existing CCR landfill that closes in accordance with
paragraph 1 shall include a statement in the closure notification required under
subdivision g of subsection 3 of this section that the CCR landfill is closing under the
requirements of this subdivision.
(3) The time frame specified in paragraph 1 does not apply if the owner or operator
complies with the alternative closure procedures specified in subsection 4.
3. Criteria for conducting the closure or retrofit of CCR units.
a. Closure of a CCR landfill, CCR surface impoundment, or any lateral expansion of a CCR
unit must be completed either by leaving the CCR in place and installing a final cover
system or through removal of the CCR and decontamination of the CCR unit, as
described in subdivisions b through i. Retrofit of a CCR surface impoundment must be
completed in accordance with the requirements in subdivision j.
b. Written closure plan.
(1) Content of the plan. The owner or operator of a CCR unit shall prepare a written
closure plan that describes the steps necessary to close the CCR unit at any point
during the active life of the CCR unit consistent with recognized and generally
accepted good engineering practices. The written closure plan must include:
(a) A narrative description of how the CCR unit will be closed in accordance with
this subsection.
(b) If closure of the CCR unit will be accomplished through removal of CCR from
the CCR unit, a description of the procedures to remove the CCR and
decontaminate the CCR unit in accordance with subdivision c.
(c) If closure of the CCR unit will be accomplished by leaving CCR in place, a
description of the final cover system and the methods and procedures to be
used to install the final cover. The closure plan must also discuss how the final
cover system will achieve the performance standards specified in
subdivision d.
(d) An estimate of the maximum inventory of CCR ever onsite over the active life
of the CCR unit.
(e) An estimate of the largest area of the CCR unit ever requiring a final cover at
any time during the CCR unit's active life.

(f) A schedule for completing all activities necessary to satisfy the closure criteria
in this subsection, including an estimate of the year in which all closure
activities for the CCR unit will be completed. The schedule must provide
sufficient information to describe the sequential steps that will be taken to close
the CCR unit, including identification of major milestones, such as coordinating
with and obtaining necessary approvals and permits from other agencies, the
dewatering and stabilization phases of CCR surface impoundment closure, or
installation of the final cover system, and the estimated time frames to
complete each step or phase of CCR unit closure. Upon preparing the written
closure plan, if the owner or operator of a CCR unit estimates that the time
required to complete closure will exceed the time frames specified in
paragraph 1 of subdivision f of this subsection, the written closure plan must
include the site-specific information, factors and considerations that would
support any time extension sought under paragraph 2 of subdivision f.
(2) Time frames for preparing the initial written closure plan.
(a) Existing CCR units. The owner or operator of the CCR unit shall include the
initial written closure plan consistent with the requirements specified in
paragraph 1 with the application for a permit.
(b) New CCR units and any lateral expansion of a CCR unit. The owner or
operator shall include an initial written closure plan consistent with the
requirements specified in paragraph 1 with the application for a new permit or
permit modification.
(c) The owner or operator has completed the written closure plan if the plan,
including the certification required by paragraph 4, has been approved by the
department and placed in the facility's operating record.
(3) Amendment of a written closure plan.
(a) The owner or operator may amend the initial or any subsequent written closure
plan at any time with approval by the department.
(b) The owner or operator shall amend the written closure plan whenever:
[1] There is a change in the operation of the CCR unit that would
substantially affect the written closure plan in effect; or
[2] Before or after closure activities have commenced, unanticipated events
necessitate a revision of the written closure plan.
(c) The owner or operator shall amend the closure plan at least sixty days prior to
a planned change in the operation of the facility or CCR unit, or no later than
sixty days after an unanticipated event requires the need to revise an existing
written closure plan. If a written closure plan is revised after closure activities
have commenced for a CCR unit, the owner or operator shall amend the
current closure plan no later than thirty days following the triggering event.
(4) The owner or operator of the CCR unit shall obtain a written certification from a
qualified professional engineer that the initial and any amendment of the written
closure plan meets the requirements of this subsection.
c. Closure by removal of CCR. An owner or operator may elect to close a CCR unit by
removing and decontaminating all areas affected by releases from the CCR unit. The
CCR removal and decontamination of the CCR unit are complete if constituent

concentrations throughout the CCR unit and any areas affected by releases from the
CCR unit have been removed and ground water monitoring concentrations do not
exceed the established ground water protection standards for constituents listed in
appendix II to this chapter.
d. Closure performance standard when leaving CCR in place.
(1) The owner or operator of a CCR unit shall ensure that, at a minimum, the CCR unit
is closed in a manner that will:
(a) Control, minimize, or eliminate, to the maximum extent feasible, postclosure
infiltration of liquids into the waste and releases of CCR, leachate, or
contaminated run-off to the ground or surface waters or to the atmosphere;
(b) Preclude the probability of future impoundment of water, sediment, or slurry;
(c) Include measures that provide for major slope stability to prevent the sloughing
or movement of the final cover system during the closure and postclosure care
period;
(d) Minimize the need for further maintenance of the CCR unit; and
(e) Be completed in the shortest amount of time consistent with recognized and
generally accepted good engineering practices.
(2) Drainage and stabilization of CCR surface impoundments. Prior to installing the final
cover system, the owner or operator of a CCR surface impoundment or any lateral
expansion of a CCR surface impoundment shall:
(a) Eliminate free liquids by removing liquid wastes or solidifying the remaining
wastes and waste residues.
(b) Stabilize remaining wastes sufficiently to support the final cover system.
(3) Final cover system. If a CCR unit is closed by leaving CCR in place, the owner or
operator shall install a final cover system that is designed to minimize infiltration and
erosion, and at a minimum, meets the requirements of subparagraph a, or the
requirements of the alternative final cover system specified in subparagraph b. The
design of the final cover system must be included in the written closure plan.
(a) The final cover system must be designed and constructed to meet these
criteria:
[1] The infiltration of liquids through the closed CCR unit must be minimized
by the use of an infiltration layer that contains a minimum of eighteen
inches [45.7 centimeters] of earthen material. The saturated hydraulic
conductivity of the infiltration layer must be no greater than 1 x 10−7
centimeters per second.
[2] A second layer of twelve inches [30.5 centimeters] or more of clay-rich
soil material suitable for serving as a plant root zone must be placed over
the compacted layer. This layer is not required if the CCR unit contains
only bottom ash.
[3] The erosion of the final cover system must be minimized by the use of an
erosion layer that contains a minimum of six inches [15.2 centimeters] of
suitable plant growth material over the covered CCR unit and the facility

planted with adapted grasses. The total depth of final cover must be three
feet [91.4 centimeters] or more unless the CCR unit contains only bottom
ash, in which case the total depth of final cover must be two feet
[61.0 centimeters] or more.
[4] The disruption of the integrity of the final cover system must be minimized
through a design that accommodates settling and subsidence.
(b) The owner or operator may select an alternative final cover system design,
provided the alternative final cover system is designed and constructed to
meet these criteria:
[1] The design of the final cover system must include an infiltration layer that
achieves an equivalent reduction in infiltration as the infiltration layer
specified in items 1 and 2 of subparagraph a or an average long-term
percolation rate less than 0.2 inches [5.0 millimeters] per year.
[2] The design of the final cover system must include an erosion layer that
provides equivalent protection from wind or water erosion as the erosion
layer specified in item 3 of subparagraph a.
[3] The disruption of the integrity of the final cover system must be minimized
through a design that accommodates settling and subsidence.
(c) The owner or operator of the CCR unit shall obtain a written certification from a
qualified professional engineer that the design of the final cover system meets
the requirements of this section.
e. Initiation of closure activities. Except as provided for in paragraph 5 and subsection 4, the
owner or operator of a CCR unit shall commence closure of the CCR unit no later than
the applicable time frames specified in either paragraph 1, 2, or 3.
(1) The owner or operator shall commence closure of the CCR unit no later than thirty
days after the date on which the CCR unit either:
(a) Receives the known final receipt of waste, either CCR or any non-CCR waste
stream; or
(b) Removes the known final volume of CCR from the CCR unit for the purpose of
beneficial use of CCR.
(2) Except as provided by paragraph 3, the owner or operator shall commence closure
of a CCR unit that has not received CCR or any non-CCR waste stream or is no
longer removing CCR for the purpose of beneficial use within two years of the last
receipt of waste or within two years of the last removal of CCR material for the
purpose of beneficial use.
(3) Notwithstanding paragraph 2, the owner or operator of the CCR unit may secure an
additional two years to initiate closure of the idle unit provided the owner or operator
provides written documentation to the department that the CCR unit will continue to
accept wastes or will start removing CCR for beneficial use. The documentation
must be supported by, at a minimum, the information specified in subparagraphs a
and b. The owner or operator may obtain two-year extensions provided the owner or
operator continues to be able to demonstrate that there is reasonable likelihood that
the CCR unit will accept wastes in the foreseeable future or will remove CCR from
the unit for beneficial use. The owner or operator shall submit each completed

demonstration to the department and place it in the facility's operating record prior
to the end of any two-year period.
(a) Information documenting that the CCR unit has remaining storage or disposal
capacity or that the CCR unit can have CCR removed for the purpose of
beneficial use; and
(b) Information demonstrating that there is a reasonable likelihood that the CCR
unit will resume receiving CCR or non-CCR waste streams in the foreseeable
future or that CCR can be removed for the purpose of beneficial use. The
narrative must include a best estimate as to when the CCR unit will resume
receiving CCR or non-CCR waste streams. The situations listed in items 1
through 4 are examples of situations that would support a determination that
the CCR unit will resume receiving CCR or non-CCR waste streams in the
foreseeable future.
[1] Normal plant operations include periods when the CCR unit does not
receive CCR or non-CCR waste streams, such as the alternating use of
two or more CCR units whereby at any point in time one CCR unit is
receiving CCR while CCR is being removed from a second CCR unit after
its dewatering.
[2] The CCR unit is dedicated to a coal-fired boiler unit that is temporarily
idled (e.g., CCR is not being generated) and there is a reasonable
likelihood that the coal-fired boiler will resume operations in the future.
[3] The CCR unit is dedicated to an operating coal-fired boiler (i.e., CCR is
being generated); however, no CCR is being placed in the CCR unit
because the CCR is being entirely diverted to beneficial uses, but there is
a reasonable likelihood that the CCR unit will be used in the foreseeable
future.
[4] The CCR unit currently receives only non-CCR waste streams and those
non-CCR waste streams are not generated for an extended period of
time, but there is a reasonable likelihood that the CCR unit will receive
non-CCR waste streams in the future.
(c) To obtain additional time extensions to initiate closure of a CCR unit beyond
the first two years provided by paragraph 2, the owner or operator of the CCR
unit shall include with the demonstration required by this subdivision the
following statement signed by the owner or operator or an authorized
representative:
I certify under penalty of law that I have personally examined and am familiar
with the information submitted in this demonstration and all attached
documents, and that, based on my inquiry of those individuals immediately
responsible for obtaining the information, I believe that the submitted
information is true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the possibility of
fine and imprisonment.
(4) For purposes of this chapter, closure of the CCR unit has commenced if the owner
or operator has ceased placing waste and completes any of the following actions or
activities:

(a) Taken any steps necessary to implement the written closure plan required by
subdivision b;
(b) Submitted a completed application for any required state or agency permit or
permit modification; or
(c) Taken any steps necessary to comply with any state or other agency standards
that are a prerequisite, or are otherwise applicable, to initiating or completing
the closure of a CCR unit.
(5) The time frames specified in paragraphs 1 and 2 do not apply to any owners or
operators of CCR units under closure as required by subdivisions a through d of
subsection 2.
f. Completion of closure activities.
(1) Except as provided for in paragraphs 2 and 3, the owner or operator shall complete
closure of the CCR unit:
(a) For existing and new CCR landfills and any lateral expansion of a CCR landfill,
within six months of commencing closure activities.
(b) For existing and new CCR surface impoundments and any lateral expansion of
a CCR surface impoundment, within five years of commencing closure
activities.
(2) Extensions of closure time frames. With approval by the department, the time
frames for completing closure of a CCR unit specified under paragraph 1 may be
extended if the owner or operator can demonstrate that it was not feasible to
complete closure of the CCR unit within the required time frames due to factors
beyond the facility's control. If the owner or operator is seeking a time extension
beyond the time specified in the written closure plan as required by subdivision b,
the demonstration must include a narrative discussion providing the basis for
additional time beyond that specified in the closure plan. The owner or operator
shall place each completed demonstration, if more than one time extension is
sought, in the facility's operating record prior to the end of any two-year period.
Factors that may support such a demonstration include:
(a) Complications stemming from the climate and weather, such as unusual
amounts of precipitation or a significantly shortened construction season;
(b) Time required to dewater a surface impoundment due to the volume of CCR
contained in the CCR unit or the characteristics of the CCR in the unit;
(c) The geology and terrain surrounding the CCR unit will affect the amount of
material needed to close the CCR unit; or
(d) Time required or delays caused by the need to coordinate with and obtain
necessary approvals and permits from a state or other agency.
(3) Maximum time extensions.
(a) CCR surface impoundments of forty acres [16.2 hectares] or smaller may
extend the time to complete closure by no longer than two years.
(b) CCR surface impoundments larger than forty acres [16.2 hectares] may extend
the time frame to complete closure of the CCR unit multiple times, in two-year

increments. For each two-year extension sought, the owner or operator shall
substantiate the factual circumstances demonstrating the need for the
extension. No more than a total of five two-year extensions may be obtained
for any CCR surface impoundment.
(c) CCR landfills may extend the time frame to complete closure of the CCR unit
multiple times, in one-year increments. For each one-year extension sought,
the owner or operator shall substantiate the factual circumstances
demonstrating the need for the extension. No more than a total of two one-year
extensions may be obtained for any CCR landfill.
(4) In order to obtain additional time extensions to complete closure of a CCR unit
beyond the times provided by paragraph 1, the owner or operator of the CCR unit
shall include with the demonstration required by paragraph 2 the following
statement signed by the owner or operator or an authorized representative:
I certify under penalty of law that I have personally examined and am familiar with
the information submitted in this demonstration and all attached documents, and
that, based on my inquiry of those individuals immediately responsible for obtaining
the information, I believe that the submitted information is true, accurate, and
complete. I am aware that there are significant penalties for submitting false
information, including the possibility of fine and imprisonment.
(5) Upon completion, the owner or operator of the CCR unit shall obtain a certification
from a qualified professional engineer verifying that closure has been completed in
accordance with the closure plan specified in subdivision b and the requirements of
this subsection.
g. Before starting closure of a CCR unit, the owner or operator shall prepare a notification of
intent to close a CCR unit. The notification must include the certification by a qualified
professional engineer for the design of the final cover system as required by
subparagraph c of paragraph 3 of subdivision d, if applicable. The owner or operator has
completed the notification if it has been submitted to the department and placed in the
facility's operating record.
h. Within thirty days of completion of closure of the CCR unit, the owner or operator shall
prepare a notification of closure of a CCR unit. The notification must include the
certification by a qualified professional engineer required by paragraph 5 of subdivision f.
The owner or operator has completed the notification if it has been submitted to the
department and placed in the facility's operating record.
i. Deed notations.
(1) Except as provided by paragraph 4, following closure of a CCR unit, the owner or
operator shall record a notation on the deed to the property, or some other
instrument that is normally examined during title search.
(2) The notation on the deed must in perpetuity notify any potential purchaser of the
property that:
(a) The land has been used as a CCR unit; and
(b) Its use is restricted under the postclosure care requirements as provided by
subparagraph c of paragraph 1 of subdivision d of subsection 5.
(3) Within sixty days of recording a notation on the deed to the property, the owner or
operator shall submit a notification to the department stating that the deed notation

has been recorded. The owner or operator has completed the notification if it has
been placed in the facility's operating record.
(4) An owner or operator that closes a CCR unit by removal of all CCR materials in
accordance with subdivision c is not subject to the requirements of paragraphs 1
through 3.
j. Criteria to retrofit an existing CCR surface impoundment.
(1) To retrofit an existing CCR surface impoundment, the owner or operator must:
(a) First remove all CCR, including any contaminated soils and sediments from the
CCR unit; and
(b) Comply with the requirements in subdivision b of subsection 2 of section
33.1-20-08-04.
(c) A CCR surface impoundment undergoing a retrofit remains subject to all other
requirements of this chapter, including the requirement to conduct any
necessary corrective action.
(2) Written retrofit plan.
(a) Content of the plan. The owner or operator shall prepare a written retrofit plan
for approval by the department that describes the steps necessary to retrofit
the CCR unit consistent with recognized and generally accepted good
engineering practices. The written retrofit plan must include:
[1] A narrative description of the specific measures that will be taken to
retrofit the CCR unit in accordance with this section.
[2] A description of the procedures to remove all CCR and contaminated soils
and sediments from the CCR unit.
[3] An estimate of the maximum amount of CCR that will be removed as part
of the retrofit operation.
[4] An estimate of the largest area of the CCR unit that will be affected by the
retrofit operation.
[5] A schedule for completing all activities necessary to satisfy the retrofit
criteria in this section, including an estimate of the year in which retrofit
activities of the CCR unit will be completed.
(b) Time frames for preparing the initial written retrofit plan.
[1] No later than sixty days prior to the date of initiating retrofit activities, the
owner or operator shall prepare the initial written retrofit plan. For
purposes of this chapter, initiation of retrofit activities has commenced if
the owner or operator has ceased placing waste in the unit and completes
any of the following actions or activities:
[a] Taken any steps necessary to implement the written retrofit plan;
[b] Submitted a completed application for a permit or permit
modification; or

[c] Taken any steps necessary to comply with any state standards that
are a prerequisite, or are otherwise applicable, to initiating or
completing the retrofit of a CCR unit.
[2] The owner or operator has completed the written retrofit plan if the plan,
including the certification required by subparagraph d, has been approved
by the department and placed in the facility's operating record.
(c) Amendment of a written retrofit plan.
[1] The owner or operator may amend the initial or any subsequent written
retrofit plan at any time with approval by the department.
[2] The owner or operator shall amend the written retrofit plan whenever:
[a] There is a change in the operation of the CCR unit that would
substantially affect the written retrofit plan in effect; or
[b] Before or after retrofit activities have commenced, unanticipated
events necessitate a revision of the written retrofit plan.
[3] The owner or operator shall amend the retrofit plan at least sixty days
prior to a planned change in the operation of the facility or CCR unit, or no
later than sixty days after an unanticipated event requires the revision of
an existing written retrofit plan. If a written retrofit plan is revised after
retrofit activities have commenced for a CCR unit, the owner or operator
shall amend the current retrofit plan no later than thirty days following the
triggering event.
(d) The owner or operator of the CCR unit shall obtain a written certification from a
qualified professional engineer that the activities outlined in the written retrofit
plan, including any amendment of the plan, meet the requirements of this
section.
(3) Deadline for completion of activities related to the retrofit of a CCR unit. Any CCR
surface impoundment that is being retrofitted must complete all retrofit activities
within the same time frames and procedures specified for the closure of a CCR
surface impoundment in subdivision f or, where applicable, subsection 4.
(4) Upon completion, the owner or operator shall obtain a certification from a qualified
professional engineer verifying that the retrofit activities have been completed in
accordance with the retrofit plan.
(5) Before initiating the retrofit of a CCR unit, the owner or operator shall prepare a
notification of intent to retrofit a CCR unit. The owner or operator has completed the
notification when it has been submitted to the department and placed in the facility's
operating record.
(6) Within thirty days of completing the retrofit activities the owner or operator shall
prepare a notification of completion of retrofit activities. The notification must include
the certification by a qualified professional engineer as required by paragraph 4.
The owner or operator has completed the notification when it has been submitted to
the department and placed in the facility's operating record.
(7) At any time after the initiation of a CCR unit retrofit, the owner or operator may
cease the retrofit and initiate closure of the CCR unit in accordance with the
requirements of this subsection.

4. [Reserved].
5. Postclosure care requirements.
a. Applicability.
(1) Except as provided by paragraph 2, this subsection applies to the owners or
operators of CCR landfills, CCR surface impoundments, and all lateral expansions
of CCR units that are subject to the closure criteria under subsection 3.
(2) An owner or operator of a CCR unit that elects to close a CCR unit by removing
CCR as provided by subdivision c of subsection 3 is not subject to the postclosure
care criteria under this subsection.
b. Postclosure care maintenance requirements. Following closure of the CCR unit, the
owner or operator shall conduct postclosure care for the CCR unit, which must consist of
at least the following:
(1) Maintaining the integrity and effectiveness of the final cover system, including
making repairs to the final cover as necessary to correct the effects of settlement,
subsidence, erosion, or other events, and preventing run-on and run-off from
eroding or otherwise damaging the final cover;
(2) If the CCR unit is subject to the design criteria under subsection 1 of section
33.1-20-08-04, maintaining the integrity and effectiveness of the leachate collection
and removal system and operating the leachate collection and removal system; and
(3) Maintaining the ground water monitoring system and monitoring the ground water in
accordance with the requirements of section 33.1-20-08-06.
c. Postclosure care period.
(1) Except as provided by paragraphs 2 and 3, the owner or operator of the CCR unit
shall conduct postclosure care for thirty years.
(2) If at the end of the postclosure care period the owner or operator of the CCR unit is
operating under assessment monitoring in accordance with subsection 5 of section
33.1-20-08-06, the owner or operator shall continue to conduct postclosure care
until the owner or operator returns to detection monitoring in accordance with
subdivision e of subsection 5 of section 33.1-20-08-06 or subparagraph b of
paragraph 3 of subdivision g of subsection 5 of section 33.1-20-08-06.
d. Written postclosure plan.
(1) Content of the plan. The owner or operator of a CCR unit shall prepare a written
postclosure plan that includes:
(a) A description of the monitoring and maintenance activities required in
subdivision b for the CCR unit, and the frequency at which these activities will
be performed;
(b) The name, address, telephone number, and email address of the person or
office to contact about the facility during the postclosure care period; and
(c) A description of the planned uses of the property during the postclosure period.
Postclosure use of the property may not disturb the integrity of the final cover,
liner, or any other component of the containment system, or the function of the
monitoring systems unless necessary to comply with the requirements in this

chapter. Any other disturbance is allowed if the owner or operator of the CCR
unit demonstrates that disturbance of the final cover, liner, or other component
of the containment system, including any removal of CCR, will not increase the
potential threat to human health or the environment. The demonstration must
be certified by a qualified professional engineer, and notification must be
provided to the department that the demonstration has been placed in the
operating record and on the owner's or operator's publicly accessible internet
site.
(2) Deadline to prepare the initial written postclosure plan.
(a) Existing CCR landfills and existing CCR surface impoundments. The owner or
operator of the CCR unit shall include the initial written closure plan consistent
with the requirements specified in paragraph 1 with the application for a permit.
(b) New CCR landfills, new CCR surface impoundments, and any lateral
expansion of a CCR unit. The owner or operator shall include an initial written
postclosure plan consistent with the requirements specified in paragraph 1 with
the application for a new permit or permit modification.
(c) The owner or operator has completed the written postclosure plan when the
plan has been approved by the department and placed in the facility's
operating record.
(3) Amendment of a written postclosure plan.
(a) The owner or operator may amend the initial or any subsequent written
postclosure plan developed pursuant to paragraph 1 at any time with approval
by the department.
(b) The owner or operator shall amend the written closure plan whenever:
[1] There is a change in the operation of the CCR unit that would
substantially affect the written postclosure plan in effect; or
[2] After postclosure activities have commenced, unanticipated events
necessitate a revision of the written postclosure plan.
(c) The owner or operator shall amend the written postclosure plan at least sixty
days prior to a planned change in the operation of the facility or CCR unit, or
no later than sixty days after an unanticipated event requires the need to revise
an existing written postclosure plan. If a written postclosure plan is revised
after postclosure activities have commenced for a CCR unit, the owner or
operator shall amend the written postclosure plan no later than thirty days
following the triggering event.
(4) The owner or operator of the CCR unit shall obtain a written certification from a
qualified professional engineer that the initial and any amendment of the written
postclosure plan meets the requirements of this subsection.
e. Notification of completion of postclosure care period. No later than sixty days following
the completion of the postclosure care period, the owner or operator of the CCR unit
shall prepare a notification verifying that postclosure care has been completed. The
notification must include the certification by a qualified professional engineer verifying
that postclosure care has been completed in accordance with the closure plan specified
in subdivision d and the requirements of this subsection. The owner or operator has

completed the notification if it has been approved by the department and placed in the
facility's operating record.
History: Effective July 1, 2020; amended effective October 1, 2024.
General Authority: NDCC 23.1-08-03
Law Implemented: NDCC 23.1-08-03, 23.1-08-04
### § 33.1-20-08-08. Recordkeeping, notification, and posting of information to the internet.

1. Recordkeeping requirements.
a. Each owner or operator of a CCR unit subject to the requirements of this chapter shall
maintain files of all information required by this section in a written operating record at
their facility.
b. Unless specified otherwise, each file must be retained for at least five years following the
date of each occurrence, measurement, maintenance, corrective action, report, record,
or study.
c. An owner or operator of more than one CCR unit subject to the provisions of this chapter
may comply with the requirements of this section in one recordkeeping system provided
the system identifies each file by the name of each CCR unit. The files may be
maintained on microfilm, on a computer, on computer disks, on a storage system
accessible by a computer, on magnetic tape disks, or on microfiche.
d. The owner or operator of a CCR unit subject to this chapter shall submit to the
department any demonstration or documentation required by this chapter, if requested.
e. Location standards. The owner or operator of a CCR unit subject to this chapter shall
place the demonstrations documenting whether or not the CCR unit is in compliance with
the requirements under subsections 1 through 5 of section 33.1- 20-08-03, as they
become available, in the facility's operating record.
f. Design criteria. The owner or operator of a CCR unit subject to this chapter shall place
the following information, as it becomes available, in the facility's operating record:
(1) The design and construction certifications as required by subdivisions b and c of
subsection 1 of section 33.1-20-08-04.
(2) The documentation of liner type as required by paragraph 1 of subdivision a of
subsection 2 of section 33.1-20-08-04.
(3) The design and construction certifications as required by paragraphs 2 and 3 of
subdivision b of subsection 2 of section 33.1-20-08-04.
(4) Documentation prepared by the owner or operator stating that the permanent
identification marker was installed as required by paragraph 1 of subdivision a of
subsection 3 of section 33.1-20-08-04.
(5) The initial and periodic hazard potential classification assessments as required by
paragraph 2 of subdivision a of subsection 3 of section 33.1-20- 08-04.
(6) The emergency action plan, and any amendment of the emergency action plan, as
required by paragraph 3 of subdivision a of subsection 3 of section 33.1-20- 08-04,
except that only the most recent emergency action plan must be maintained in the
facility's operating record and publicly accessible CCR website.

(7) Documentation prepared by the owner or operator recording the annual face-to-face
meeting or exercise between representatives of the owner or operator of the CCR
unit and the local emergency responders as required by item 5 of subparagraph a of
paragraph 3 of subdivision a of subsection 3 of section 33.1-20-08-04.
(8) Documentation prepared by the owner or operator recording all activations of the
emergency action plan as required by subparagraph e of paragraph 3 of
subdivision a of subsection 3 of section 33.1-20-08-04.
(9) The history of construction, including design and construction plans, and any
revisions of it, as required by subdivision c of subsection 3 of section 33.1-20-08-04,
except that these files must be maintained until the CCR unit completes closure of
the unit in accordance with subsection 3 of section 33.1-20-08-07.
(10) The initial and periodic structural stability assessments as required by subdivision d
of subsection 3 of section 33.1-20-08-04.
(11) Documentation detailing the corrective measures taken to remedy the deficiency or
release as required by paragraph 2 of subdivision d of subsection 3 of section
33.1-20-08-04.
(12) The initial and periodic safety factor assessments as required by paragraph 2 of
subdivision e of subsection 3 of section 33.1-20-08-04.
g. Operating criteria. The owner or operator of a CCR unit subject to this chapter must place
the following information, as it becomes available, in the facility's operating record:
(1) The CCR fugitive dust control plan, and any subsequent amendment of the plan,
required by subdivision b of subsection 1 of section 33.1-20-08-05, except that only
the most recent control plan must be maintained in the facility's operating record
and publicly accessible CCR website.
(2) The annual CCR fugitive dust control report required by subdivision c of
subsection 1 of section 33.1-20-08-05.
(3) The initial and periodic run-on and run-off control system plans as required by
subdivision c of subsection 2 of section 33.1-20-08-05.
(4) The initial and periodic inflow design flood control system plan as required by
subdivision c of subsection 3 of section 33.1-20-08-05.
(5) Documentation recording the results of each impoundment inspection and
instrumentation monitoring by a qualified person as required by subdivision a of
subsection 4 of section 33.1-20-08-05.
(6) The periodic impoundment inspection report as required by paragraph 2 of
subdivision b of subsection 4 of section 33.1-20-08-05.
(7) Documentation detailing the corrective measures taken to remedy the deficiency or
release as required by paragraph 5 of subdivision b of subsection 4 of section
33.1-20-08-05.
(8) Documentation recording the results of the weekly landfill inspection by a qualified
person as required by subdivision a of subsection 5 of section 33.1- 20-08-05.

(9) The periodic landfill inspection report as required by paragraph 2 of subdivision b of
subsection 5 of section 33.1-20-08-05.
h. Ground water monitoring and corrective action. The owner or operator of a CCR unit
subject to this chapter shall place the following information, as it becomes available, in
the facility's operating record:
(1) The annual ground water monitoring and corrective action report as required by
subdivision e of subsection 1 of section 33.1-20-08-06.
(2) Documentation of the design, installation, development, and decommissioning of
any monitoring wells; piezometers; and other measurement, sampling, and
analytical devices as required by paragraph 1 of subdivision e of subsection 2 of
section 33.1-20-08-06.
(3) The ground water monitoring system certification as required by subdivision f of
subsection 2 of section 33.1-20-08-06.
(4) The selection of a statistical method certification as required by paragraph 6
subdivision f of subsection 3 of section 33.1-20-08-06.
(5) Within thirty days of establishing an assessment monitoring program, the notification
as required by paragraph 3 subdivision e of subsection 4 of section 33.1-20-08-06.
(6) The results of appendices I and II to this chapter constituent concentrations as
required by paragraph 1 subdivision d of subsection 5 of section 33.1-20- 08-06.
(7) Within thirty days of returning to a detection monitoring program, the notification as
required by subdivision e of subsection 5 of section 33.1-20-08- 06.
(8) Within thirty days of detecting one or more constituents in appendix II to this chapter
at statistically significant levels above the ground water protection standard, the
notifications as required by subdivision g of subsection 5 of section 33.1-20-08-06.
(9) The completed assessment of corrective measures as required by subdivision d of
subsection 6 of section 33.1-20-08-06.
(10) Documentation prepared by the owner or operator recording the public meeting for
the corrective measures assessment as required by subdivision e of subsection 6 of
section 33.1-20-08-06.
(11) The semiannual report describing the progress in selecting and designing the
remedy and the selection of remedy report as required by subdivision a of
subsection 7 of section 33.1-20-08-06, except that the selection of remedy report
must be maintained until the remedy has been completed.
(12) Within thirty days of completing the remedy, the notification as required by
subdivision e of subsection 8 of section 33.1-20-08-06.
i. Closure and postclosure care. The owner or operator of a CCR unit subject to this
chapter shall place the following information, as it becomes available, in the facility's
operating record:
(1) The notification of intent to initiate closure of the CCR unit as required by paragraph
1 of subdivision b of subsection 1 of section 33.1-20-08-07 and subdivision g of
subsection 3 of section 33.1-20-08-07.

(2) The annual progress reports of closure implementation as required by paragraph 2
of subdivision d of subsection 4 of section 33.1-20-08-07.
(3) The notification of closure completion as required by subdivision h of subsection 3
of section 33.1-20-08-07.
(4) The written closure plan, and any amendment of the plan, as required by
subdivision b of subsection 3 of section 33.1-20-08-07, except that only the most
recent closure plan must be maintained in the facility's operating record and publicly
accessible CCR website.
(5) The written demonstrations, including the certification required by paragraph 3 of
subdivision e of subsection 3 of section 33.1-20-08-07, for a time extension for
initiating closure as required by subparagraph c of paragraph 3 of subdivision e of
subsection 3 of section 33.1-20-08-07.
(6) The written demonstrations, including the certification required by paragraph 4 of
subdivision f of subsection 3 of section 33.1-20-08-07, for a time extension for
initiating closure as required by subparagraph d of paragraph 2 of subdivision f of
subsection 3 of section 33.1-20-08-07.
(7) The notification of intent to close a CCR unit as required by subdivision g of
subsection 3 of section 33.1-20-08-07.
(8) The notification of completion of closure of a CCR unit as required by subdivision h
of subsection 3 of section 33.1-20-08-07.
(9) The notification recording a notation on the deed as required by subdivision i of
subsection 3 of section 33.1-20-08-07.
(10) The notification of intent to comply with the alternative closure requirements as
required by paragraph 1 of subdivision d of subsection 4 of section 33.1- 20-08-07.
(11) The annual progress reports under the alternative closure requirements as required
by paragraph 2 of subdivision d of subsection 4 of section 33.1-20- 08-07.
(12) The written postclosure plan, and any amendment of the plan, as required by
subdivision d of subsection 5 of section 33.1-20-08-07, except that only the most
recent closure plan must be maintained in the facility's operating record and publicly
accessible CCR website.
(13) The notification of completion of postclosure care period as required by
subdivision e of subsection 5 of section 33.1-20-08-07.
j. Retrofit criteria. The owner or operator of a CCR unit subject to this chapter shall place
the following information, as it becomes available, in the facility's operating record:
(1) The written retrofit plan, and any amendment of the plan, as required by
paragraph 2 of subdivision j of subsection 3 of section 33.1-20-08-07, except that
only the most recent retrofit plan must be maintained in the facility's operating
record and publicly accessible CCR website.
(2) The notification of intent that the retrofit activities will proceed in accordance with the
alternative procedures as required by paragraph 1 of subdivision d of subsection 4
of section 33.1-20-08-07.

(3) The annual progress reports required under the alternative requirements as
required by paragraph 2 of subdivision d subsection 4 of section 33.1-20-08- 07.
(4) The written demonstrations, including the certification in paragraph 4 of subdivision f
of subsection 3 of section 33.1-20-08-07, for a time extension for completing retrofit
activities as required by paragraph 3 of subdivision j of subsection 3 of section
33.1-20-08-07.
(5) The notification of intent to initiate retrofit of a CCR unit as required by paragraph 5
of subdivision j of subsection 3 of section 33.1-20-08-07.
(6) The notification of completion of retrofit activities as required by paragraph 6 of
subdivision j of subsection 3 of section 33.1-20-08-07.
2. Record submission requirements.
a. The submittals required under subdivision e of this subsection must be sent to the
department before the close of business on the day the submittal is required to be
completed. For purposes of this section, before the close of business means the
submittal must be postmarked or sent by electronic mail. If a deadline falls on a weekend
or state holiday, the deadline is automatically extended to the next business day.
b. If any CCR unit is located in part within Indian country, notifications of submittals required
by this section must be sent to the appropriate tribal authority.
c. Submittals may be combined as long as the deadline requirement for each submittal is
met. Submittals may be included in a permit application, plan of operation, ground water
monitoring plan, corrective action plan, report, or application for modification of any of
these documents, as applicable.
d. Unless otherwise required in this section, the submittals specified in this section must be
sent to the department within thirty days of placing in the facility's operating record. If the
department does not approve any of the documents, the owner or operator of the CCR
unit shall modify the document and resubmit it to the department for approval. The final
approved document must be placed in the facility operating record and on the publicly
accessible CCR website within thirty days of approval by the department and the
unapproved document must be removed.
e. All documents, plans, assessments, demonstrations, certifications, and reports placed in
the facility operating record and on the publicly accessible CCR website, as specified in
subdivisions e through j of subsection 1, must be submitted to the department, except:
(1) Documentation of the permanent identification marker specified under paragraph 4
of subdivision f of subsection 1.
(2) Documentation of the results of each weekly impoundment inspection by a qualified
person as specified under paragraph 5 of subdivision g of subsection 1.
(3) Documentation of the results of each weekly landfill inspection by a qualified person
as specified under paragraph 8 of subdivision g of subsection 1.
(4) Documentation of the design, installation, development, and decommissioning of
any monitoring wells; piezometers; and other measurement, sampling, and
analytical devices as specified under paragraph 2 of subdivision h of subsection 1.
(5) The results of appendices I and II to this chapter constituent concentrations as
specified under paragraph 6 of subdivision h of subsection 1.

(6) Documentation prepared by the owner or operator recording the public meeting for
the corrective measures assessment specified under paragraph 10 of subdivision h
of subsection 1.
3. Publicly accessible internet site requirements.
a. Each owner or operator of a CCR unit subject to the requirements of this chapter shall
maintain a publicly accessible internet site (CCR website) containing the information
specified in subdivision e. The owner's or operator's website must be titled "CCR Rule
Compliance Data and Information". The website must ensure that all information required
to be posted is immediately available to anyone visiting the site, without requiring any
prerequisite, such as registration or a requirement to submit a document request. All
required information must be clearly identifiable and must be able to be printed
immediately and downloaded by anyone accessing the site. If the owner or operator
changes the web address (i.e., uniform resource locator) at any point, the owner must
notify the United States environmental protection agency (EPA) via the "contact us" form
on EPA's CCR website and the department within fourteen days of making the change.
The facility's CCR website also must have a "contact us" form or a specific electronic
mail address posted on the website for the public to use to submit questions and issues
relating to the availability of information on the website.
b. An owner or operator of more than one CCR unit subject to the provisions of this chapter
may comply with the requirements of this section by using the same Internet site for
multiple CCR units provided the CCR website clearly delineates information by the name
or identification number of each unit.
c. Unless otherwise required in this chapter, the information required to be posted to the
CCR website must be made available to the public for as long as it is required to be in
the facility operating record.
d. Unless otherwise required in this chapter, the information must be posted to the CCR
website within thirty days of placing the pertinent information required by subsection 1 in
the operating record.
e. Each owner or operator shall place on the facility's publicly accessible CCR website all
documents, plans, assessments, demonstrations, certifications, and reports placed in the
facility operating record and approved by the department as specified in subdivisions e
through j of subsection 1, except:
(1) Documentation of the permanent identification marker specified under paragraph 4
of subdivision f of subsection 1.
(2) Documentation of the results of each weekly impoundment inspection by a qualified
person as specified under paragraph 5 of subdivision g of subsection 1.
(3) Documentation of the results of each weekly landfill inspection by a qualified person
as specified under paragraph 8 of subdivision g of subsection 1.
(4) Documentation of the design, installation, development, and decommissioning of
any monitoring wells, piezometers and other measurement, sampling, and analytical
devices as specified under paragraph 2 of subdivision h of subsection 1.
(5) The results of appendices I and II to this chapter constituent concentrations as
specified under paragraph 6 of subdivision h of subsection 1.

(6) Documentation prepared by the owner or operator recording the public meeting for
the corrective measures assessment specified under paragraph 10 of subdivision h
of subsection 1.
History: Effective July 1, 2020; amended effective October 1, 2024.
General Authority: NDCC 23.1-08-03
Law Implemented: NDCC 23.1-08-03, 23.1-08-04

Appendix I to Chapter 33.1-20-08 - Constituents for Detection Monitoring
Common name1
Boron
Calcium
Chloride
Fluoride
pH
Sulfate
Total Dissolved Solids (TDS)
1Common names are those widely used in government regulations, scientific publications, and
commerce; synonyms exist for many chemicals.

Appendix II to Chapter 33.1-20-08 - Constituents for Assessment Monitoring
Common name1
Antimony
Arsenic
Barium
Beryllium
Cadmium
Chromium
Cobalt
Fluoride
Lead
Lithium
Mercury
Molybdenum
Selenium
Thallium
Radium 226 and 228 combined
1Common names are those widely used in government regulations, scientific publications, and
commerce; synonyms exist for many chemicals.
