North Dakota Administrative Code
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
Section 33.1-20-08-02 - Applicability

Universal Citation: ND Admin Code ยง 33.1-20-08-02

Current through Supplement No. 394, October, 2024

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).

General Authority: NDCC 23.1-08-03

Law Implemented: NDCC 23.1-08-03, 23.1-08-04

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