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 33.1-20-08-07 - Closure and postclosure care

(a) The owner or operator must have prepared and placed a notification of intent to initiate closure of the inactive CCR surface impoundment in the facility's operating record;

(b) The owner or operator must have provided notification of the intent to initiate closure of the inactive CCR surface impoundment to the department; and

(c) The owner or operator must have placed the notification of intent to initiate closure of the inactive CCR surface impoundment on its CCR website.

(a) The owner or operator of the inactive CCR surface impoundment shall:

(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.

(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.

(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.

(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.

(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.

(a) Placement above the uppermost aquifer. Except as provided by paragraph 4, the owner or operator of an existing CCR surface impoundment that has not demonstrated compliance with the location standard specified in subsection 1 of section 33.1-20-08-03, shall cease placing CCR and non-CCR waste streams into such CCR unit no later than October 31, 2020, and close the CCR unit in accordance with the requirements of subsection 3.

(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.

(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 should 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. When 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.

(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 modification that meets the requirements of this chapter within twenty-four months of July 1, 2020, as required by subsection 9 of section 33.1-20-08-02.

(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 when the plan, including the certification required by paragraph 4, has been approved by the department and placed in the facility's operating record.

(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:

(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.

(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.

(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.

(a) The final cover system must be designed and constructed to meet these criteria:

(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:

(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.

(a) This paragraph specifies the allowable uses of CCR in the closure of CCR units closing pursuant to subsection 2. Coal combustion residuals may be placed in such units with approval by the department, but only for the purposes of grading and contouring in the design and construction of the final cover system.

(b) The owner or operator of a CCR unit shall meet all of the following criteria when placing CCR within a CCR unit for the purposes of grading or contouring:

(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.

(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.

(c) In order 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.

(a) Taken any steps necessary to implement the written closure plan required by paragraph 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.

(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.

(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.

(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 must 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.

(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.

(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.

(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:

(b) time frames for preparing the initial written retrofit plan.

(c) Amendment of a written retrofit plan.

(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.

(a) No alternative disposal capacity is available onsite or offsite. An increase in costs or the inconvenience of existing capacity is not sufficient to support qualification under this section;

(b) The owner or operator has made, and continues to make, efforts to obtain additional capacity. Qualification under this subsection lasts only as long as no alternative capacity is available. Once alternative capacity is identified, the owner or operator shall arrange to use such capacity as soon as feasible;

(c) The owner or operator shall remain in compliance with all other requirements of this chapter, including the requirement to conduct any necessary corrective action; and

(d) The owner or operator shall prepare an annual progress report documenting the continued lack of alternative capacity and the progress towards the development of alternative CCR disposal capacity.

(a) No alternative disposal capacity is available. An increase in costs or the inconvenience of existing capacity is not sufficient to support qualification under this section;

(b) The owner or operator has made, and continues to make, efforts to obtain additional capacity. Qualification under this subsection requires that efforts to obtain additional capacity were made at the earliest date that an owner or operator knew, or had reason to know, that such a unit may become subject to closure under subdivisions a, b, or d of subsection 2. Qualification under this subsection lasts only as long as no alternative capacity is available. Once alternative capacity is identified, the owner or operator shall arrange to use such capacity as soon as feasible;

(c) The owner or operator shall remain in compliance with all other requirements of this chapter, including the requirement to conduct any necessary corrective action; and

(d) The owner or operator shall prepare an annual progress report documenting the continued lack of alternative capacity and the progress towards the development of alternative capacity for the given waste stream.

(a) No alternative disposal capacity is available onsite or offsite. An increase in costs or the inconvenience of existing capacity is not sufficient to support qualification under this section.

(b) The owner or operator shall remain in compliance with all other requirements of this chapter, including the requirement to conduct any necessary corrective action; and

(c) The owner or operator shall prepare an annual progress report documenting the continued lack of alternative capacity and the progress towards the closure of the coal-fired boiler.

(a) The first annual progress report must be prepared no later than thirteen months after completing the notification of intent to comply with the alternative closure requirements.

(b) The second annual progress report must be prepared no later than twelve months after completing the first annual progress report. Additional annual progress reports must be prepared within twelve months of completing the previous annual progress report.

(c) The owner or operator has completed the progress reports specified in this paragraph when the reports are placed in the facility's operating record.

(a) To reduce the postclosure care period, the department must ensure that the postclosure care period is long enough to establish settlement behavior and to detect to wear-in defects in the cover system. At a minimum, the department must consider the type of cover placed on the unit (e.g., geosynthetic clay liner) and the placement of the ground water monitoring wells with respect to the waste management units and the ground water table.

(b) A determination that a reduced postclosure care period is warranted does not affect the obligation to comply with subdivision b.

(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.

(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 modification that meets the requirements of this chapter within twenty-four months of July 1, 2020, as required by subsection 9 of section 33.1-20-08-02.

(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.

(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:

(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.