# Title 23.1 — Environmental Quality

## Chapter 23.1-08 — Solid Waste Management and Land Protection

### § 23.1-08-01. Finding of necessity.

The legislative assembly finds that:
1. The people of North Dakota have a right to a clean environment, and the costs of
maintaining a clean environment through the efficient environmentally acceptable
management of solid wastes should be borne by those who use such services.
2. Serious economic, management, and technical problems exist in the management of
solid wastes resulting from residential, commercial, industrial, agricultural, and other
activities carried on in said jurisdictions.
3. Inefficient and improper methods of managing solid wastes create serious hazards to
the public health, result in scenic blights, cause pollution of air and water resources,
cause accident hazards, increase rodent and insect disease vectors, have an adverse
effect on land values, create public nuisances, and otherwise interfere with community
life and development.
4. While the management of solid wastes is the responsibility of each person, problems
of solid waste management have become a matter statewide in scope and concern,
and necessitate state action through technical assistance and leadership in the
application of new improved methods and processes to reduce the amount of solid
wastes and unsalvageable materials and to promote environmentally acceptable and
economical solid waste management.
### § 23.1-08-02. Definitions.

1. "Auxiliary container" means a bag, cup, bottle, straw, or other packaging, whether
reusable or single-use, which is:
a. Made of cloth, paper, plastic, corrugated material, aluminum, glass,
postconsumer recycled material, or a similar material or substrate, including a
coated, laminated, or multilayer substrate; and
b. Designated for transporting, consuming, or protecting merchandise, food, or
beverages from or at a food service or retail facility.
2. "Collection" means the aggregation of solid waste from the places at which the waste
was generated.
3. "Department" means the department of environmental quality.
4. "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or
placing of any solid waste into or on any land or water including ground water.
5. "Industrial waste" means solid waste, which is not a hazardous waste regulated under
chapter 23.1-04, generated from the combustion or gasification of municipal waste and
from industrial and manufacturing processes. The term does not include municipal
waste or special waste.
6. "Infectious waste" means solid waste that may contain pathogens with sufficient
virulence and in sufficient quantity that exposure of a susceptible human or animal to
the solid waste could cause the human or animal to contract an infectious disease.
7. "Landfill" means a publicly or privately owned area of land where solid wastes are
permanently disposed.
8. "Litter" means discarded and abandoned solid waste materials that are not special
waste or industrial waste.
9. "Major appliance" means an air conditioner, clothes dryer, clothes washer, dishwasher,
freezer, microwave oven, oven, refrigerator, stove, furnace, water heater, humidifier,
dehumidifier, garbage disposal, trash compactor, or similar appliance.
10. "Municipal waste" means solid waste that includes garbage; refuse; and trash
generated by households, motels, hotels, recreation facilities, public and private
facilities; and commercial, wholesale, private, and retail businesses. The term does not
include special waste or industrial waste.
11. "Open burning" means the combustion of solid waste without control of combustion air
to maintain adequate temperature for efficient combustion, containment of the

combustion reaction in an enclosed device to provide sufficient residence time and
mixing for complete combustion, and control of the emission of the combustion
products.
12. "Political subdivision" means a city, county, township, or solid waste management
authority.
13. "Resource recovery" means the use, reuse, or recycling of materials, substances,
energy, or products contained within or derived from solid waste.
14. "Solid waste" means any garbage; refuse; sludge from a waste treatment plant, water
supply treatment plant, or air pollution control facility; and other discarded material,
including solid, liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations, and from community
activities. The term does not include:
a. Agricultural waste, including manures and crop residues, returned to the soil as
fertilizer or soil conditioners; or
b. Solid or dissolved materials in domestic sewage, or solid or dissolved material in
irrigation return flows or industrial discharges that are point sources subject to
permits under section 402 of the Federal Water Pollution Control Act, as
amended [Pub. L. 92-500; 86 Stat. 816; 33 U.S.C. 1251 et seq.], or source,
special nuclear, or byproduct material as defined by the Atomic Energy Act of
1954, as amended [68 Stat. 919; 42 U.S.C. 2011 et seq.].
15. "Solid waste management" means the purposeful systematic control of the storage,
collection, transport, composting, resource recovery, land treatment, and disposal of
solid waste.
16. "Special waste" means solid waste that is not a hazardous waste regulated under
chapter 23.1-04 and includes waste generated from energy conversion facilities; waste
from crude oil and natural gas exploration and production; waste from mineral and ore
mining, beneficiation, and extraction; and waste generated by surface coal mining
operations. The term does not include municipal waste or industrial waste.
17. "Storage" means the containment and holding of solid waste after generation for a
temporary period, at the end of which the solid waste is processed for resource
recovery, treated, disposed of, or stored elsewhere.
18. "Transport" means the offsite movement of solid waste.
### § 23.1-08-03. Powers and duties of the department.

The department shall:
1. Administer and enforce the state solid waste management program under this chapter.
2. Provide technical assistance on request to political subdivisions of the state and
cooperate with appropriate federal agencies in carrying out the duties under this
chapter. On request, the department may provide technical assistance to other
persons.
3. Encourage and recommend procedures for using self-financing solid waste
management systems and intermunicipal agencies.
4. Promote the planning and application of resource recovery facilities and systems that
preserve and enhance the quality of air, water, and all resources.
5. Serve as the official state representative for all purposes of the Federal Solid Waste
Disposal Act [Pub. L. 89-272; 79 Stat. 997; 42 U.S.C. 6901 et seq.], as amended, and
for other state or federal legislation to assist in the management of solid wastes.
6. Survey the solid waste management needs within the state and maintain and upgrade
the North Dakota solid waste management plan.
7. Require any person within the state to submit for review and approval a solid waste
management plan to show that solid wastes will be disposed of in accordance with the
provisions of this chapter.
8. Adopt and enforce rules governing solid waste management to conserve the air, water,
and land resources of the state; protect the public health; prevent environmental
pollution and public nuisances; and enable the department to administer this chapter,
the adopted solid waste management plan, and delegated federal programs.

9. Establish procedures for permits governing the design, construction, operation, and
closure of solid waste management facilities and systems.
10. Prepare, issue, modify, revoke, and enforce orders, after investigation, inspection,
notice, and hearing, prohibiting violation of this chapter or of any rules issued under
this chapter, and requiring remedial measures for solid waste management as may be
necessary or appropriate under this chapter.
11. Adopt rules to establish categories and classifications of solid waste and solid waste
management facilities based on waste type and quantity, facility operation, or other
facility characteristics and to limit, restrict, or prohibit the disposal of solid wastes
based on environmental or public health rationale.
12. Adopt rules to establish standards and requirements for each category of solid waste
management facility.
13. Adopt rules to establish financial assurance requirements to be met by any person
proposing construction or operation of a solid waste management facility sufficient to
provide for closure and postclosure activities. Financial assurance requirements may
include: insurance, trust funds, surety bonds, letters of credit, personal bonds,
certificates of deposit, and financial tests or corporate guarantees.
14. Conduct an environmental compliance background review of any applicant for any
permit. In conducting the review, if the department finds an applicant for a permit has
intentionally misrepresented or concealed any material fact from the department, or
has obtained a permit by intentional misrepresentation or concealment of a material
fact, has been convicted of a felony or pleaded guilty or nolo contendere to a felony
within three years preceding the application for the permit, or has been adjudicated in
contempt of an order of any court within three years preceding the application for the
permit, the department may deny the application. The department shall consider the
relevance of the offense to the business to which the permit is issued, the nature and
seriousness of the offense, the circumstances under which the offense occurred, the
date of the offense, and the ownership and management structure in place at the time
of the offense.
15. Adopt rules to establish standards and requirements for solid waste pilot projects.
### § 23.1-08-04. Coal combustion residuals - Present use and disposal deemed

acceptable.
Notwithstanding any other provision of law, the legislative assembly deems the present use
and disposal of coal combustion residuals to be acceptable and that present regulation allows
for the beneficial use of coal combustion residuals in concrete, for other construction
applications, and for other innovative uses and allows for safe disposal without coal combustion
residuals being regulated as a hazardous waste. For purposes of regulating coal combustion
residuals, the term "ground water" means water below the land surface in a zone of saturation.
If a federal law or regulation is adopted pertaining to the use and disposal of coal combustion
residuals, this section does not prohibit the state from seeking state primacy of the federal
program.
### § 23.1-08-05. Commercial oilfield special waste recycling facilities - Action against well

operators restricted.
Repealed by S.L. 2023, ch. 254, § 4.
### § 23.1-08-06. Local government ordinances.

Any political subdivision of the state may enact and enforce a solid waste management
ordinance that is equal to or more stringent than this chapter and the rules adopted under this
chapter.

### § 23.1-08-06.1. Prohibition on political subdivision ordinance regulating auxiliary

containers.
1. Notwithstanding any other provision of law, a political subdivision may not adopt or
enforce an ordinance that:
a. Regulates the use or disposition of an auxiliary container;
b. Prohibits or restricts an auxiliary container; or
c. Imposes a fee, charge, or tax on an auxiliary container.
2. This section may not be construed to prohibit or restrict:
a. A curbside or commercial recycling program;
b. A designated residential or commercial recycling location;
c. A political subdivision from adopting or enforcing an ordinance prohibiting littering;
or
d. A political subdivision or a public or private facility from using or regulating an
auxiliary container on property owned by the respective political subdivision or
public or private facility.
### § 23.1-08-07. Littering and open burning prohibited - Penalty.

1. A person may not discard and abandon litter, furniture, or major appliances upon
public property or upon private property not owned by that person, unless the property
is designated for the disposal of litter, furniture, or major appliances and that person is
authorized to use the property for that purpose.
2. A person may not engage in the open burning of solid waste, unless the burning is
conducted in accordance with rules adopted by the department.
3. A person violating this section is guilty of an infraction for which a minimum fine of two
hundred dollars must be imposed, except if the litter discarded and abandoned
amounted to more than one cubic foot [0.0283 cubic meter] in volume or if the litter
consisted of furniture or a major appliance, the offense is a class B misdemeanor and
the person is subject to the civil penalty provided in section 23.1-08-23.
### § 23.1-08-08. Prohibition in landfill disposal - Lead-acid batteries accepted as trade-ins.

1. Infectious waste must be properly treated before disposal by methods approved by the
department. A person may not knowingly deposit in a landfill untreated infectious
waste.
2. Except as provided in subsection 3, a person may not place in municipal waste or
discard or dispose of in a landfill lead-acid batteries, used motor oil, wind turbine
blades, or major appliances.
3. If resource recovery markets are not available for the items listed in subsection 2, the
items must be disposed of in a manner approved by the department.
4. Lead-acid batteries must be accepted as trade-ins for new lead-acid batteries by any
person who sells lead-acid batteries at retail.
### § 23.1-08-09. Permits.

(Contingent expiration date - See note)
1. The department may issue permits for solid waste management facilities and solid
waste transporters. A person may not own, operate, or use a facility for solid waste
disposal or transport solid wastes without a valid permit. Upon receipt of a permit
application, the department shall give public notice, in the official newspaper of the
county in which the facility is to be located, that the department is considering an
application for a solid waste management facility. The notice must state the name of
the applicant, the location of the facility, and a description of the facility. The
department shall require as a condition of a permit for a solid waste management
facility, not owned or operated by the state or a political subdivision, that any entity that
controls the permitholder agrees to accept responsibility for any remedial measures,
closure and postclosure care, or penalties incurred by the permitholder. For purposes
of this section, "control" means ownership or control, directly, indirectly, or through the
actions of one or more persons of the power to vote twenty-five percent or more of any

class of voting shares of a permitholder, or the direct or indirect power to control in any
manner the election of a majority of the directors of a permitholder, or to direct the
management or policies of a permitholder, whether by individuals, corporations,
partnerships, trusts, or other entities or organizations of any type. All permits are
nontransferable, are for a term of not more than ten years from the date of issuance,
and are conditioned upon the observance of the laws of the state and the rules
adopted under this chapter.
2. For each permit application, the department shall notify the board of county
commissioners of a county in which a new solid waste management facility will be
located of the department's intention to issue a permit for the facility. The board of
county commissioners may call a special election to be held within sixty days after
receiving notice from the department to allow the qualified electors of the county to
vote to approve or disapprove of the facility based on public interest and impact on the
environment. If a majority of the qualified electors voting on the question in the election
vote to disapprove of the facility, the department may not issue the permit and the
facility may not be located in that county.
3. Notwithstanding subsection 2, if the new solid waste management facility will be
owned or operated by a solid waste management authority, a special election to
approve or disapprove of a facility may be called only if the boards of county
commissioners from a majority of the counties in the solid waste management district
call for a special election. However, a special election must be conducted in each
county within the authority. If a majority of the qualified electors voting on the question
in the election vote to disapprove of the facility, the department may not issue the
permit.
4. Subsections 2 and 3 do not apply to a solid waste management facility operated as
part of an energy conversion facility or part of a surface coal mining and reclamation
operation, if the solid waste management facility disposes of only waste generated by
the energy conversion facility or surface coal mining and reclamation operation.
Permits. (Contingent effective date - See note)
1. The department may issue permits for solid waste management facilities and solid
waste transporters. A person may not own, operate, or use a facility for solid waste
disposal or transport solid wastes without a valid permit. Upon receipt of a permit
application, the department shall give public notice, in the official newspaper of the
county in which the facility is to be located, that the department is considering an
application for a solid waste management facility. The notice must state the name of
the applicant, the location of the facility, and a description of the facility. The
department shall require as a condition of a permit for a solid waste management
facility, not owned or operated by the state or a political subdivision, that any entity that
controls the permitholder agrees to accept responsibility for any remedial measures,
closure and postclosure care, or penalties incurred by the permitholder. For purposes
of this section, "control" means ownership or control, directly, indirectly, or through the
actions of one or more persons of the power to vote twenty-five percent or more of any
class of voting shares of a permitholder, or the direct or indirect power to control in any
manner the election of a majority of the directors of a permitholder, or to direct the
management or policies of a permitholder, whether by individuals, corporations,
partnerships, trusts, or other entities or organizations of any type. All permits are
transferable, are for a term of not more than ten years from the date of issuance, and
are conditioned upon the observance of the laws of the state and the rules adopted
under this chapter.
2. For each permit application, the department shall notify the board of county
commissioners of a county in which a new solid waste management facility will be
located of the department's intention to issue a permit for the facility. The board of
county commissioners may call a special election to be held within sixty days after
receiving notice from the department to allow the qualified electors of the county to
vote to approve or disapprove of the facility based on public interest and impact on the

environment. If a majority of the qualified electors voting on the question in the election
vote to disapprove of the facility, the department may not issue the permit and the
facility may not be located in that county.
3. Notwithstanding subsection 2, if the new solid waste management facility will be
owned or operated by a solid waste management authority, a special election to
approve or disapprove of a facility may be called only if the boards of county
commissioners from a majority of the counties in the solid waste management district
call for a special election. However, a special election must be conducted in each
county within the authority. If a majority of the qualified electors voting on the question
in the election vote to disapprove of the facility, the department may not issue the
permit.
4. Subsections 2 and 3 do not apply to a solid waste management facility operated as
part of an energy conversion facility or part of a surface coal mining and reclamation
operation, if the solid waste management facility disposes of only waste generated by
the energy conversion facility or surface coal mining and reclamation operation.
### § 23.1-08-10. Fees - Deposit in operating fund.

The department by rule may prescribe the payment and collection of reasonable fees to
issue permits or registration certificates for registering, licensing, or permitting solid waste
generators, transporters, and treatment, storage, recycling, or disposal facilities. The fees must
be based on the anticipated cost of filing and processing the application, taking action on the
requested permit or registration certificate, and conducting a monitoring and inspection program
to determine compliance or noncompliance with the permit or registration certificate. Any
moneys collected for permit licensing or registration fees must be deposited in the department
operating fund in the state treasury, and any expenditures from the fund are subject to
appropriation by the legislative assembly. Applicants for special waste solid waste management
facilities shall submit a minimum fee as follows:
1. Twenty thousand dollars for any facility that receives on average one hundred tons
[90718 kilograms] or more per day.
2. Ten thousand dollars for any facility which receives on average more than ten tons
[9071.80 kilograms] but less than one hundred tons [90718 kilograms] per day.
### § 23.1-08-11. Solid waste management fund - Administration.

The solid waste management fund is a special fund in the state treasury. The Bank of North
Dakota shall administer the fund. The fund is a revolving fund, subject to appropriation by the
legislative assembly. The Bank may annually deduct up to one-half of one percent of the fund
balance including the principal balance of the outstanding loans as a service fee for
administering the fund. The Bank shall contract with a certified public accounting firm to audit
the fund once every two years. The cost of the audit and any other actual costs incurred by the
Bank on behalf of the fund must be paid from the fund. Section 54-44.1-11 does not apply to the
fund.
### § 23.1-08-12. Applications for grants or loans - Loan terms.

Moneys in the solid waste management fund may be used to make grants or low-interest
loans to political subdivisions for waste reduction, planning, resource recovery, and recycling
projects with an emphasis on marketing. An application for a grant or loan out of moneys in the
solid waste management fund must be made to the department. The department shall review an
application to determine if the purpose of the grant or loan is consistent with the purposes of the
fund and the district solid waste management plan. The department shall adopt rules to
implement this section. If the department approves an application, the department shall forward
the application and the results of the department's review of the application to the Bank of North
Dakota. The Bank, in consultation with the department, shall determine the financial criteria that
must be met for an application to be approved. A loan must be repaid within a period not
exceeding twenty years at an interest rate of four percent.

### § 23.1-08-13. Preconstruction site review.

The department, in cooperation with the department of water resources and the state
geologist, shall develop criteria for siting a solid waste disposal facility based upon potential
impact on environmental resources. Any application for a landfill permit received after the
department develops siting criteria as required by this section must be reviewed for site
suitability by the department after consultation with the department of water resources and state
geologist before any site development. Site development does not include the assessment or
monitoring associated with the review as required by the department in consultation with the
department of water resources and state geologist.
### § 23.1-08-14. Waste characterization.

The department may not allow the storage or disposal of solid waste from outside this state,
unless it is demonstrated that the governing authority or the generator of the solid waste from
outside this state has an effective program for waste quality control and for waste
characterization.
### § 23.1-08-15. Municipal waste landfills and incinerators - Certification.

A municipal waste landfill and a municipal waste incinerator must have at least one
individual certified by the department onsite at all times during the operation of the landfill or
incinerator. The department shall adopt training standards and certification requirements.
### § 23.1-08-16. Public educational materials - Municipal waste reduction and recycling.

The department, after consulting with the superintendent of public instruction, shall develop
and disseminate educational materials to encourage voluntary municipal waste reduction,
source separation, reuse of materials, recycling efforts, and appropriate management of
municipal waste.
### § 23.1-08-17. Disclosure of information before issuance, renewal, transfer, or major

modification of permit.
Before an application for the issuance, renewal, transfer, or major modification of a permit
under this chapter may be granted, the applicant shall submit to the department a disclosure
statement executed under oath or affirmation. The department shall verify and may investigate
the information in the statement and shall deny an application for the issuance, renewal,
transfer, or major modification of a permit if the applicant has intentionally misrepresented or
concealed any material fact in a statement required under this section, a judgment of criminal
conviction for violation of any federal or state environmental laws has been entered against the
applicant within five years before the date of submission of the application, or the applicant has
knowingly and repeatedly violated any state or federal environmental protection laws. The
disclosure statement must include:
1. The name and business address of the applicant.
2. A description of the applicant's experience in managing the type of solid waste that will
be managed under the permit.
3. A description of every civil and administrative complaint against the applicant for the
violation of any state or federal environmental protection law which has resulted in a
fine or penalty of more than ten thousand dollars within five years before the date of
the submission of the application.
4. A description of every pending criminal complaint alleging the violation of any state or
federal environmental protection law.
5. A description of every judgment of criminal conviction entered against the applicant
within five years before the date of submission of the application for the violation of
any state or federal environmental protection law.
6. A description of every judgment of criminal conviction of a felony constituting a crime
involving fraud or misrepresentation which has been entered against the applicant
within five years before the date of submission of the application.

### § 23.1-08-18. Inspections.

The department may inspect all solid waste management activities and facilities, at all
reasonable times, to ensure compliance with the laws of this state, the provisions of this
chapter, and the rules authorized under this chapter.
### § 23.1-08-19. Administrative procedure and judicial review.

A proceeding under this chapter to adopt or modify rules, including emergency orders
relating to solid waste management and land protection, or determine compliance with rules of
the department, must be conducted in accordance with the provisions of chapter 28-32, and
appeals may be taken as provided under that chapter. When an emergency exists requiring
immediate action to protect the public health and safety, the department may, without notice or
hearing, issue an order reciting the existence of the emergency and requiring action be taken as
necessary to meet the emergency. Notwithstanding any provision of this chapter, the order is
effective immediately, but on application to the department must be afforded a hearing before
the environmental review advisory council within ten days. On the basis of the hearing, the
emergency order must be continued, modified, or revoked within thirty days after the hearing.
### § 23.1-08-20. Injunction proceedings.

The violation of any provision of this chapter, or any rule or order issued under the chapter
is declared a nuisance inimical to the public health, welfare, and safety. Whenever in the
judgment of the department a person has engaged in or is about to engage in any acts that
constitute or will constitute a violation of this chapter, or any rule or order issued under the
chapter, the department, in accordance with the laws governing injunctions and other process,
may maintain an action in the name of the state enjoining the action or for an order directing
compliance, and upon a showing by the department that the person has engaged or is about to
engage in the acts or practices, a permanent or temporary injunction, restraining order, or other
order may be granted.
### § 23.1-08-21. Plats.

A person operating a solid waste management facility for disposal under a permit issued
under this chapter shall, upon completion of the operation at each site, file a plat of the area with
the recorder of each county in which the facility is located, together with a description of the
wastes placed therein.
### § 23.1-08-22. Exemption.

The provisions of this chapter, and the rules or orders authorized under the chapter, do not
prevent an individual who resides on unplatted land in unincorporated areas of this state from
disposing of that individual's normal household wastes on that individual's property, so long as
doing so does not create a health hazard or nuisance.
### § 23.1-08-23. Penalties.

1. Any person that violates this chapter or any permit condition, rule, order, limitation, or
other applicable requirement implementing this chapter is subject to a civil penalty not
to exceed twelve thousand five hundred dollars per day per violation, unless the
penalty for the violation is otherwise specifically provided for and made exclusive in
this chapter.
2. Any person that willfully violates any provision of this chapter or any permit condition,
rule, order, limitation, or other applicable requirement implementing this chapter is
guilty of a class C felony, unless the penalty for the violation is otherwise specifically
provided for and made exclusive in this chapter.
3. Any person that willfully makes any false statement, representation, or certification in
any application, record, report, plan, or other document filed or required to be
maintained under this chapter or any permit condition, rule, order, limitation, or other
applicable requirement implementing this chapter or that falsifies, tampers with, or
willfully renders inaccurate any monitoring device or method required to be maintained

under this chapter or any permit condition, rule, order, limitation, or other applicable
requirement implementing this chapter is guilty of a class C felony, unless the penalty
for the violation is otherwise specifically provided for and made exclusive in this
chapter.
4. The following citizen participation provisions apply to violations of this chapter relating
to coal combustion residuals or any permit condition, rule, order, limitation, or other
applicable requirement implementing this chapter relating to coal combustion
residuals:
a. A person having an interest that may be affected adversely by a violation of this
chapter may commence a civil action to compel compliance with this chapter, or a
rule, order, or permit issued under this chapter.
b. Notice of the violation must be given to the department and to an alleged violator
sixty days before commencement of a citizen suit brought under this subsection.
c. A person with an interest that may be affected adversely by a violation of this
chapter may intervene as a matter of right in a civil action brought by the
department to require compliance with this chapter.
