2012 North Dakota Century Code Title 23 Health and Safety Chapter 23-20.3 Hazardous Waste Management
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CHAPTER 23-20.3
HAZARDOUS WASTE MANAGEMENT
23-20.3-01. Declaration of purpose.
It is hereby declared to be the purpose of this chapter to:
1. Protect human health and the environment from the effects of the improper,
inadequate, or unsafe past or present management of hazardous waste and
underground storage tanks.
2. Establish a program to regulate hazardous waste from the time of generation through
transportation, storage, treatment, and disposal.
3. Promote reduction of hazardous waste generation, reuse, recovery, and treatment as
preferable alternatives to landfill disposal.
4. Assure the safe and adequate management of hazardous waste with a minimum of
hazardous waste disposal sites within the state.
5. Establish a program to regulate underground storage tanks.
6. Promote reduction of surface and ground water contamination resulting from leaking
underground storage tanks.
23-20.3-02. Definitions.
When used in this chapter:
1. "Commercial facility" means all contiguous land, structures, appurtenances, and
improvements on the land used for treatment and disposal of hazardous waste
received from offsite generators. Ownership of the offsite hazardous waste is different
than the ownership of the processing facility and the wastes are processed for a fee or
other consideration.
2. "Department" means the state department of health charged with the administration
and enforcement of this chapter.
3. "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or
placing of any solid waste or hazardous waste into or on any land or water so that
such solid waste or hazardous waste or any hazardous constituent thereof may enter
the environment or be emitted into the air or discharged into any waters, including
ground water.
4. "Facility" means all contiguous land, and structures, other appurtenances, and
improvements on the land, used for treating, storing, or disposing of hazardous waste.
A facility may consist of several contiguous treatment, storage, or disposal operational
units.
5. "Generator" means any person, by site, whose act or process produces hazardous
waste or whose act first causes a hazardous waste to become subject to regulation.
6. "Hazardous waste" means any waste or combination of wastes of a solid, liquid,
contained gaseous, or semisolid form which:
a. Because of its quantity, concentration, or physical, chemical, or other
characteristic, in the judgment of the department may:
(1) Cause, or significantly contribute to, an increase in mortality or an increase
in serious irreversible or incapacitating reversible illness; or
(2) Pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, disposed of, or otherwise
managed; or
b. Is identified by the mechanisms established in this chapter. Such wastes include,
but are not limited to, those which exhibit extraction procedure (EP) toxicity,
corrosivity, ignitability, or reactivity.
7. "Hazardous waste management" means the systematic control of the collection,
source separation, storage, transportation, processing, treatment, recovery, and
disposal of hazardous waste.
8. "Manifest" means the document used for identifying the quantity, composition, origin,
routing, and destination of hazardous waste during its transportation from the site of
generation to the site of storage, treatment, or disposal.
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"Owner" means, in the case of an underground storage tank:
a. In use on or after November 8, 1984, any person who owns or operates an
underground storage tank used for the storage, use, or dispensing of regulated
substances.
b. In use before November 8, 1984, but no longer in use after that date, any person
who owned or operated such a tank immediately before the discontinuation of its
use.
"Person" means any individual, trust, firm, joint-stock company, corporation (including
a government corporation), limited liability company, partnership, association, or other
legal entity, state, municipality, commission, political subdivision of a state, interstate
body, or federal department, agency, or instrumentality.
"Regulated substance" means:
a. Any substance defined in section 101(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, but not
including any substance regulated as a hazardous waste under subtitle C of the
Resource Conservation and Recovery Act, as amended.
b. Petroleum, including crude oil or any fraction thereof which is liquid at standard
conditions of temperature and pressure (sixty degrees Fahrenheit [16 degrees
Celsius] and fourteen and seven-tenths pounds [6.66 kilograms] per square inch
[6.45 square centimeters] absolute).
"Release" means any spilling, leaking, emitting, discharging, escaping, leaching, or
disposing from an underground storage tank into ground water, surface water, or
subsurface soils.
"Storage" means the holding of hazardous waste at a site for a temporary period, at
the end of which the hazardous waste is treated, disposed of, or transported and
retained elsewhere.
"Transportation" means the offsite movement of hazardous wastes to any intermediate
site or to any site of storage, treatment, or disposal.
"Treatment" means any method, technique, or process, including neutralization,
designed to change the physical, chemical, or biological character or composition of
any hazardous waste so as to neutralize such waste, or so as to recover energy or
material resources from the waste, or so as to render such wastes nonhazardous or
less hazardous; safer to transport, store, or dispose of; or amenable for recovery,
amenable for storage, or reduced in volume.
"Treatment, storage, or disposal facility" means a location at which hazardous waste is
subjected to treatment, storage, or disposal and may include a facility where
hazardous waste has been generated.
"Underground storage tank" means any one or combination of underground tanks,
including underground pipes connected to an underground tank, used to contain an
accumulation of regulated substances, and the volume of which, including the volume
of the underground pipes connected to it, is ten percent or more beneath the surface
of the ground. Exemptions from this definition and regulations adopted under this
chapter include:
a. Farm or residential tanks of one thousand one hundred gallons [4163.94 liters] or
less capacity used for storing motor fuel for noncommercial purposes.
b. Tanks used for storing heating oil for consumptive use on the premises where
stored.
c. Septic tanks.
d. A pipeline facility, including gathering lines, regulated under:
(1) The Natural Gas Pipeline Safety Act of 1968.
(2) The Hazardous Liquid Pipeline Safety Act of 1979.
(3) An interstate pipeline facility regulated under state laws comparable to the
provisions of law in paragraph 1 or 2.
e. Surface impoundments, pits, ponds, or lagoons.
f. Storm water or wastewater collection systems.
g. Flow-through process tanks.
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Liquid traps or associated gathering lines directly related to oil or gas production
and gathering operations.
i. Storage tanks situated in an underground area such as a basement, cellar, mine
working, drift, shaft, or tunnel if the storage tank is situated upon or above the
surface of the floor.
"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
commercial, industrial, or other chemical, biological, or physical activities. It does not
include solid or dissolved material in domestic sewage or solid or dissolved material in
irrigation return flows or industrial discharges which are point sources subject to
permits under section 402 of the Federal Clean Water Act, as amended, or source,
special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as
amended, or to coal mining wastes or overburden for which a surface coal mining and
reclamation permit is issued or approved under the Surface Mining Control and
Reclamation Act of 1977.
23-20.3-03. Powers and duties of the department.
The department has the responsibility for the administration and enforcement of this
chapter. It has the power and its duties are to:
1. Administer the state hazardous waste management and underground storage tank
programs pursuant to provisions of this chapter.
2. Survey hazardous waste generation and management practices in the state.
3. Prepare, adopt, promulgate, modify, repeal, and enforce rules and regulations
governing the management of hazardous waste and underground storage tanks.
4. Enter into agreements or letters of understanding with other local, state, or federal
agencies regarding responsibilities for regulating hazardous wastes and underground
storage tanks in order to promote consistency in enforcement and to avoid duplication
in regulation.
23-20.3-03.1. Institutional controls, responsibility exemptions, and regulatory
assurances for contaminated properties - Continuing appropriation.
1. The department may establish institutional controls or give site-specific responsibility
exemptions or regulatory assurances to owners, operators, or lenders, as provided by
this section for real property contaminated by regulated substances or other pollution
or contamination regulated by the department under this chapter or chapter 61-28. To
qualify for a site-specific responsibility exemption, the owner of the property, or the
political subdivision establishing institutional controls under this section through its
zoning authority, must:
a. Delineate the vertical and horizontal extent and concentration of the pollution or
contamination in soil and ground water;
b. Identify potential persons or receptors that may be impacted by the pollution or
contamination, evaluate the potential for movement or migration of the pollution
or contamination and potential pathways of exposure, and identify potential health
or environmental impacts to persons or receptors based on the proposed
property use;
c. Identify the past and current uses of the property, the current uses of contiguous
properties, and zoning restrictions or regulations that apply to the property and
contiguous properties;
d. Identify any surface water or ground water uses, or ground water wells, that may
be impacted by the pollution or contamination;
e. Agree to comply with and complete any remediation or monitoring plan agreed to
or ordered by the department as a condition of receiving a site-specific
responsibility exemption, including monitoring of natural attenuation of pollution or
contamination;
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If remediation or monitoring of pollution or contamination is being conducted by a
responsible party or governmental body other than the landowner or operator,
agree to allow access for all monitoring or remedial activities reasonably related
to the identified pollution or contamination;
g. Agree to any other reasonable institutional controls that are necessary to protect
public health and welfare from pollution or contamination on the property or to
satisfy environmental standards enforced by the department; and
h. Agree to comply with all institutional controls, letters of no further remediation,
letters of no further action, or letters of regulatory assurance established or
instituted under this section as a condition of receiving a property-specific or
site-specific responsibility exemption or regulatory assurance.
"Institutional controls" are restrictions on the use and management of real property,
including use and management of buildings or fixtures, that contain or prevent
migration of regulated substances or other pollution or contamination, or protect
receptors from exposure or the threat of exposure to regulated substances or other
pollution or contamination. Institutional controls may apply during environmental
remediation activities, or may apply to residual regulated substances, pollutants, or
other pollution or contamination or their byproducts that may remain on property after
active environmental remediation activities are concluded or while natural attenuation
of regulated substances or other pollution or contamination is occurring. Institutional
controls may be established by the department as follows:
a. When an area made subject to institutional controls involves two or more property
owners and an area larger than either one city block or ten acres [4.05 hectares],
the department and the political subdivision having zoning authority over the
property may agree to institutional controls relating to the identified area impacted
by the pollution or the contamination. Before the institutional controls become
effective, they must be the subject of a public hearing and be established in the
same manner as zoning regulations are established by that political subdivision.
The political subdivision is responsible for providing all notices under this
subdivision, but any public hearing must be held jointly by the political subdivision
and the department.
b. In addition or in the alternative, the department also may establish institutional
controls by agreement to an environmental covenant with the owner of the real
property. Before agreeing to any environmental covenants under this subdivision,
all contiguous landowners to the property to which the covenants will attach must
be notified by certified mail or by service by publication as provided in the North
Dakota Rules of Civil Procedure. An environmental covenant must state that it is
an environmental covenant that runs with the land; have a legally sufficient
description of the real property subject to the covenant; describe activity or use
limitations and terms of access for any monitoring or remediation; identify every
holder who is a grantee of the covenant; be signed by every holder and the owner
of the property before a notary public; and describe the name and location of any
administrative record for the environmental response or remediation identified for
the property under subsection 1. All environmental covenants must be filed with
the county recorder of the county in which the property is located.
In addition or in the alternative to institutional controls, after completion of the
assessments and requirements of subsection 1, the department may issue a letter of
no further remediation or a letter of no further action to a property owner when an
environmental remediation is completed on the site or property, or when no institutional
controls are necessary to protect public health or welfare or to come into compliance
with an environmental standard that has been violated and later corrected on the site
or property.
Notwithstanding any institutional controls established for any real property, the
department has access for inspection and enforcement for environmental violations as
provided by law.
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If there is any additional discharge or release of a regulated substance, pollutant, or
contaminant on the property subject to institutional controls or regulatory exemptions
that intermingles with the delineated pollution or contamination identified under
subsection 1, or if the owner or operator of the property manages the property in a
manner that causes the contamination to migrate to a neighboring contiguous property
or results in the exposure of contaminants to receptors on the property, then
institutional controls or regulatory exemptions established under this section are
voidable by the department after a public investigatory hearing by giving written notice
to the political subdivision and the current owner of the property subject to the
institutional controls, as well as any lender holding a lien on the property identified
under subsections 7 and 8. Culpability of the owner or operator of the property for any
new or additional discharge, release, or movement of pollution or contamination, as
well as responsibility for any offsite discharge or release or culpability for exposure of
onsite or offsite receptors to pollution or contamination, must be considered by the
department in determining whether to void any institutional controls, and any final
determination by the department to void an institutional control is subject to review
under chapter 28-32. If the institutional control is an environmental covenant
established under subdivision b of subsection 2, the written notice voiding the
environmental covenant as well as a copy of the covenant being voided by the
department must be filed with the county recorder of the appropriate county.
Institutional controls may also be terminated or amended at any time by written
agreement between the department, the relevant political subdivision, the owner of the
property, or other body or person subject to the institutional controls, as well as any
identified lender, after giving notice as described in subsection 2. Letters of no further
remediation, of no further action, or regulatory assurance may be amended by written
agreement of the participating parties.
Before agreeing to any institutional controls or responsibility exemptions, the
department may require insurance coverage or other financial assurance for any
additional environmental monitoring or remediation that may become necessary on the
property after the site-specific responsibility exemptions and institutional controls are
established, and must require such insurance coverage or other financial assurance
when the projected cost of an active monitoring or remediation program exceeds five
hundred thousand dollars. The department may terminate the requirement for financial
assurance if the person required to have financial assurance demonstrates to the
department that the property no longer presents a significant threat to public health or
the environment. The department may enter a joint agreement with affected political
subdivisions, state or federal agencies, property owners, lenders, the administrator of
the petroleum tank release compensation fund, or any responsible or potentially
responsible party concerning payment for or funding of any insurance coverage or
other financial assurance for any additional environmental monitoring or remediation
that may become necessary on contaminated or affected properties. Such agreements
do not waive the liability limitations that apply by law to the state, to state agencies, or
to political subdivisions, except up to the amounts, and subject to the terms,
conditions, and limitations, of any insurance policy or any financial assurance fund
created by the joint agreement of the parties under this subsection. Any financial
assurance fund must comply with chapters 59-09, 59-10, 59-11, 59-12, 59-13, 59-14,
59-15, 59-16, 59-17, 59-18, and 59-19 and be managed for the benefit of the affected
persons or community, but liability of the fund may not exceed the amount deposited
with the fund.
Participation by a lender in an agreement under this section may not be construed as
management of the property under chapter 32-40.1. Lenders who participate in an
agreement under this section may not be held responsible for any environmental
remediation on the site or property except as provided in subsection 3 of section
32-40.1-02. As part of an agreement under subsection 7, the department may issue a
letter of regulatory assurance to a lender which states that the lender is not
responsible for environmental remediation on the property or site, and which
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addresses other issues relating to responsibility, notice, violation of agreement under
subsection 7 by the owner or operator, default, or other matters affecting potential
environmental liability, investment, or redevelopment. A responsibility exemption of
regulatory assurance given or granted to a lender under this section also applies to a
lender's tranferees or assigns, provided the party has had no prior involvement with or
responsibility for the site of the environmental release, and uses and manages the
property after the transfer or assignment in compliance with institutional controls or
other conditions established under this section and the requirements of this chapter
and chapter 61-28.
The department may adopt rules to implement this section. The department may
assess administrative fees in an amount and manner established by rule against
responsible parties. In addition, by agreement of the participants, under subsection 7
the department may collect an administrative fee for a specific site or project to
address the department's costs and expenses at that site or project, in an amount
agreed to under subsection 7, or may collect an administrative fee in an amount set by
rule from a person making a request for a responsibility exemption or regulatory
assurance under this section. Any administrative fees collected under this section must
be deposited by the department in a separate account in the department's operating
fund and used only for administration of remediation activities under this chapter or
chapter 61-28 and moneys deposited in this account are appropriated to the
department on a continuing basis. Administrative fees may not be collected out of
federal moneys or against the petroleum tank release compensation fund.
The administrator of the petroleum tank release compensation fund under chapter
23-37 may request recovery of expenditures the administrator has made at a
remediation site from the separate account in the department's operating fund from
fees collected under this section if recovery may not be made from a responsible party
or as provided in chapter 23-37. If the department determines that sufficient funds are
available without compromising the remediation project at the site, moneys in the
separate account may be used to reimburse the petroleum tank release compensation
fund for expenditures the administrator has made at the remediation site.
All letters of partial or complete exemption from responsibility for remediation or further
action issued by the department under this section may be revoked by the department
if any condition of the letters is violated; if institutional controls on the property are not
complied with; or if the person, governmental body, or entity violates any provision of
this chapter or chapter 61-28.
"Environmental covenant" means a covenant running with the land as established
under this section.
"Natural attenuation" means the reduction in the mass or concentration in soils or
ground water of a regulated substance, pollutant, contaminant, and the products into
which a substance breaks down, due to naturally occurring physical, chemical, and
biological processes, without human intervention. "Enhanced natural attenuation"
means the enhancement of natural attenuation at a site by the addition of chemicals,
biota, or other substances or processes. "Monitored natural attenuation" means the
monitoring of natural attenuation as it occurs. The department in its discretion may
consider natural attenuation or enhanced or monitored natural attenuation as
remediation alternatives for a site when pollution or contamination on a site or property
does not pose a threat to human health or the environment, and reasonable
safeguards are established under this section or other provisions of state or federal
law.
"Regulatory assurance" means an assurance issued by the department concerning
enforcement relating to existing contamination or pollution on a property or site based
on compliance with conditions stated in a letter of regulatory assurance. A regulatory
assurance is not voidable under subsection 5.
"Responsibility exemption" means a partial or complete exemption from responsibility
for remediation or further action on a contaminated property or at a contaminated site
based on compliance with the conditions identified in a letter of no further remediation
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or a letter of no further action. A responsibility exemption is voidable only against a
person that violates an institutional control or a condition of a letter of no further action
or no further remediation, or that is responsible for a new or additional release or
migration of a regulated substance or pollutant on the property or site, or whose
actions or negligence cause the violation, release, or migration.
"Responsible party" means a person who causes or contributes to an onsite or offsite
release or discharge, or who is responsible for an illegal or unpermitted storage, of a
pollutant or regulated substance in violation of this chapter or chapter 61-28, that
results in the contamination or pollution of a property or site. "Potentially responsible
party" means a person who is identified as a possible cause of, or contributor to,
contamination or pollution on a site or property.
This section does not affect the authority of the department, the state, or its political
subdivisions to exercise any powers or duties under this chapter or other provisions of
state law with respect to any new or additional discharge or release or threatened
discharge or release of a pollutant or regulated substance on a property or site
regulated under this section, or the right of the department or any other person to seek
legal or equitable relief against any person that is not subject to a liability protection
provided under this section.
23-20.3-04. Hazardous waste regulations.
Pursuant to the requirements of chapter 28-32, the department shall, after notice and
opportunity for public hearing and comment, promulgate and may revise as appropriate:
1. Regulations for determining whether any waste is hazardous.
2. Regulations which prescribe procedures for generators of hazardous waste.
3. Regulations for the issuance of permits for the storage, treatment, and disposal of
hazardous waste in an environmentally sound manner, utilizing best scientific and
engineering judgment.
4. Regulations providing procedures under which the department shall issue, renew,
modify, suspend, revoke, or deny such permits as may be required by this chapter.
The regulations must provide that no permit may be revoked until the department has
provided the affected party with written notice of the intent of the department to revoke
the permit and the reasons for such revocation and with an opportunity for a hearing.
5. Regulations for the location, design, construction, operation, and maintenance of
treatment, storage, and disposal facilities.
6. Regulations for the transportation, containerization, and labeling of hazardous wastes,
which must be consistent with those issued by the United States department of
transportation and the North Dakota public service commission and the North Dakota
department of transportation.
7. Regulations providing procedures and requirements for a manifest system.
8. Regulations which prescribe procedures and requirements for the following:
a. Recordkeeping.
b. Reporting.
c. Sampling.
d. Performing analysis.
e. Monitoring.
9. Regulations requiring that the owner or operator of any hazardous waste treatment,
storage, or disposal facility demonstrate evidence of financial responsibility in such
form and amount as the department may determine to be necessary to ensure that,
upon abandonment, cessation, or interruption of the operation of the facility, all
appropriate measures are taken to prevent present and future damage to human
health and the environment.
10. Any other regulations necessary to carry out the purposes of this chapter.
23-20.3-04.1. Underground storage tank regulations.
Pursuant to the requirements of chapter 28-32, the department shall, after notice and
opportunity for public hearing and comment, adopt:
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Regulations for maintaining a leak detection system, an inventory control system
together with tank testing, or a comparable system or method designed to identify
releases in a manner consistent with the protection of human health and the
environment.
2. Regulations for maintaining records of any monitoring of a leak detection system,
inventory control system, or tank testing system.
3. Regulations for reporting of any releases and corrective action taken in response to a
release from an underground tank.
4. Regulations for taking corrective action in response to a release from an underground
storage tank.
5. Regulations for the closure of tanks to prevent future releases of regulated substances
into the environment.
6. Regulations for maintaining evidence of financial responsibility for taking corrective
action and compensating third parties for bodily injury and property damage caused by
sudden and nonsudden accidental releases arising from operating an underground
storage tank.
7. Regulations establishing standards for installation of new underground storage tanks.
8. Regulations establishing standards for construction and performance of new
underground storage tanks.
9. Regulations for notifying the department or designated local agency of the existence of
any operational or nonoperational underground storage tank.
10. Regulations for a permit fee system to own, install, or operate an underground storage
tank.
However, regulations adopted by the department may not be more stringent than applicable
requirements of the federal Resource Conservation and Recovery Act and the federal Energy
Policy Act of 2005 in effect on August 1, 2007.
23-20.3-04.2. Municipal underground storage tank ordinances.
A county, city, or township may not enact and enforce an underground storage tank
ordinance if the ordinance is more stringent than this chapter and the rules authorized to be
adopted pursuant to this chapter.
23-20.3-05. Permits.
1. No person may construct, substantially alter, or operate any hazardous waste
treatment, storage, or disposal facility, nor may any person treat, store, or dispose of
any hazardous waste without first obtaining a permit from the department for such
facility or activity. No hazardous waste treatment, storage, or disposal facility may be
issued a permit unless the applicant demonstrates to the satisfaction of the
department that a need for the facility exists and that the facility can comply with all
applicable requirements under this chapter.
2. Any facility required to have a permit under this section which facility is in existence on
July 1, 1981, or was in existence on the effective date of any statutory or regulatory
change in the hazardous waste management that requires it to have a permit, and has
made an application for a permit under this section must be treated as having been
issued such permit until such time as final administrative disposition of such
application is made.
3. The department, by regulation, shall require that any person who owns or operates a
facility which is treated as having been issued a permit under subsection 2 meet all
applicable requirements of section 23-20.3-04.
4. Permits must contain such terms and conditions as the department deems necessary.
5. Permits must be issued for a period of five years.
6. Any permit issued under this section may be revoked by the department according to
the regulations promulgated under subsection 3 of section 23-20.3-04 at any time
when the permittee fails to comply with the terms and conditions of the permit, or with
applicable requirements under this chapter.
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In the event that a permit applicant proposes modifications of an existing facility, or in
the event that the department determines that modifications are necessary to conform
to the requirements established under this chapter, the permit must specify the time
allowed to complete the modifications.
Before the issuing of a permit the department shall:
a. Cause to be published in the official county newspaper of the county in which the
proposed facility will be located and in major local newspapers of general
circulation and broadcast over local radio stations notice of the department's
intention to issue such permit; and
b. Transmit in writing notice of the department's intention to issue such permit to
each unit of local government having jurisdiction over the area in which the facility
is proposed to be located and to each state agency having any authority under
state law with respect to the construction or operation of the facility.
If within forty-five days the department receives written notice of opposition to the
department's intention to issue a permit and a request for a hearing, or if the
department determines on its own initiative, the department shall hold an informal
public hearing, including an opportunity for presentation of written and oral views, on
whether the department should issue a permit for the proposed facility. Whenever
possible the department shall schedule the hearing at a location convenient to the
nearest population center to the proposed facility. Notice of the hearing must be
published in the manner provided in subdivisions a and b. The notice must contain the
date, time, place, and subject matter of the hearing.
Any facility required to have a permit under this chapter is exempt from the permit
requirements of chapter 23-29.
23-20.3-05.1. Fees - Deposit in operating fund.
The department by rule may prescribe and provide for the payment and collection of
reasonable fees for the issuance of permits or registration certificates for registering, licensing,
or permitting hazardous waste generators, transporters, and treatment, storage, recycling, or
disposal facilities. The permit or registration certificate 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 expenditure from the fund is subject to appropriation by the legislative
assembly.
23-20.3-05.2. Commercial facility permits and ordinances.
Counties and cities may issue permits for commercial facilities pursuant to section
23-20.3-05 and may enact and enforce commercial facility ordinances if the ordinances are
equal to or more stringent than this chapter and the rules adopted under this chapter.
In addition to the requirements for obtaining a permit under this chapter, no person may
construct, substantially alter, or operate any commercial facility nor may any person dispose of
any hazardous waste without first obtaining a permit from the department and from the county,
or, if the commercial facility is located or proposed to be located, within the territorial zoning
authority of a city, the city. The department, in conjunction with the governing body of the county
or city where the commercial facility is located or proposed to be located, shall hold a public
hearing in the manner provided in subsection 8 of section 23-20.3-05.
23-20.3-05.3. 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,
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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 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 under the laws of any state or of the United States
which has been entered against the applicant within five years before the date of
submission of the application.
23-20.3-06. Inspections - Right of entry.
For the purposes of developing or enforcing any rule authorized by this chapter, or enforcing
any requirement of this chapter, any duly authorized representative or employee of the
department may, upon presentation of appropriate credentials, at any reasonable time:
1. Enter any place, facility, or site where wastes or substances which the department has
reason to believe may be hazardous or regulated are, may be, or may have been
generated, stored, transported, treated, disposed of, or otherwise handled.
2. Inspect and obtain samples of any waste or substance which the department has
reason to believe may be hazardous or regulated, including samples from any vehicles
in which wastes are being transported as well as samples of any containers or labels.
3. Inspect and copy any records, reports, information, or test results relating to the
purposes of this chapter.
23-20.3-07. Monitoring, analysis, and testing - Civil penalty.
1. If the department determines, upon receipt of any information, that:
a. The presence of any hazardous waste, hazardous constituent, or regulated
substance at a facility or site at which hazardous waste or regulated substance is,
or has been, stored, treated, or disposed of; or
b. The release of any such waste or regulated substance from a facility or site may
present a substantial hazard to human health or the environment,
the department may issue an order requiring the owner or operator of the facility or site
to conduct any monitoring, testing, analysis, and reporting with respect to the facility or
site which the department deems reasonable to ascertain the nature and extent of the
hazard.
2. In the case of any facility or site not in operation at the time a determination is made
under subsection 1 with respect to the facility or site, if the department finds that the
owner or operator of such facility or site could not reasonably be expected to have
actual knowledge of the presence of hazardous waste or regulated substance at such
facility or site and of its potential for release, the department may issue an order
requiring the most recent previous owner or operator of such facility or site who could
reasonably be expected to have such actual knowledge to carry out the actions
referred to in subsection 1.
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3.
Anyone who violates this section is subject to a civil penalty of five thousand dollars
per day of violation.
23-20.3-08. Imminent hazard.
Upon receipt of information that the past or present handling, storage, transportation,
treatment, or disposal of any waste or regulated substance may present an imminent and
substantial endangerment to health or the environment, the department may take such
emergency action as it determines necessary to protect health or the environment.
23-20.3-09. Enforcement penalties and citizen participation.
1. Whenever the department finds that any person is in violation of any permit, rule,
regulation, standard, or requirement of this chapter, the department may issue an
order requiring such person to comply with such permit, rule, regulation, standard, or
requirement, and the department may bring an action for a civil or criminal penalty,
including an action for injunctive relief. Any action under this chapter must be brought
in the North Dakota district court for the county in which the violation occurred or in
which the party in violation has the party's residence or principal office in the state.
2. Any person who violates any provision of this chapter or any regulation, standard, or
permit condition adopted pursuant to this chapter is subject to a civil penalty not to
exceed twenty-five thousand dollars per day of violation. Each day of noncompliance
constitutes a separate violation for purposes of penalty assessments.
3. Any person who knowingly violates any provision of this chapter or any regulation,
standard, or permit condition adopted pursuant to this chapter, or who knowingly
makes any false statement or representation in any documentation required by this
chapter, is subject to a fine not to exceed twenty-five thousand dollars per day of
violation, to imprisonment for a period not to exceed one year, or both.
4. Any person who knowingly violates any provision of this chapter in such a manner so
as to manifest extreme indifference to human life and whose conduct thereby places
another person in imminent danger of death or serious bodily injury, is subject to a fine
not to exceed fifty thousand dollars per day of violation, to imprisonment for a period
not to exceed two years, or both.
5. a. Any person having an interest which is or may be adversely affected by a
violation of this chapter may commence a civil action on that person's own behalf
to compel compliance with this chapter, or any regulation, order, or permit issued
pursuant to this chapter.
b. Notice of the violation must be given to the department and to any alleged violator
sixty days before commencement of a citizen suit brought under this subsection.
c. Any person with an interest which is or may be adversely affected by a violation
of this chapter may intervene as a matter of right in any civil action brought by the
department to require compliance with the provisions of this chapter.
6. Any administrative action brought under this chapter must be conducted in accordance
with North Dakota Administrative Code article 33-22.
23-20.3-10. Applicability.
The hazardous waste provisions of this chapter do not apply to the following wastes to the
degree to which they are exempted from regulation by sections 3001(b)(2) and 3001(b)(3)(A) of
the Resource Conservation and Recovery Act as amended by the Solid Waste Disposal Act
Amendments of 1980 [Pub. L. 96-482]:
1. Drilling fluids, produced water, and other wastes associated with the exploration,
development, or production of crude oil or natural gas or geothermal energy.
2. Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste
generated primarily from the combustion or gasification of coal or other fossil fuels.
3. Solid waste from the extraction, beneficiation, and processing of ores and minerals,
including phosphate rock and overburden from the mining of uranium ore.
4. Cement kiln dust waste.
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Except, that when a waste disposal site for any of the above wastes is to be closed, the owner
or operator shall file a plat of the disposal site with the recorder of each county in which the
facility is located, together with a description of the wastes placed therein.
23-20.3-11. Limited liability for subsequent owners of property.
1. Notwithstanding any other provision of law and except as expressly provided by
federal law, a person who acquires property is not liable for any existing hazardous
waste or substance on the property if:
a. The person acquired the property after the disposal or placement of the
hazardous waste or substance on, in, or at the property, and at the time the
person acquired the property that person did not know and had no reason to
know that any hazardous waste or substance was disposed of on, in, or at the
property;
b. The person is a governmental entity that acquired the property by escheat, by tax
sale, foreclosure, or through any other involuntary transfer or acquisition, or
through the exercise of eminent domain authority by purchase or condemnation;
or
c. The person acquired the property by inheritance or bequest and that person did
not know and had no reason to know that any hazardous waste or substance was
disposed of on, in, or at the property.
2. To establish that the person had no reason to know, the person must have undertaken,
at the time of acquisition, all appropriate inquiry into the previous ownership and uses
of the property consistent with good commercial or customary practice in an effort to
minimize liability. For purposes of this requirement, a court shall take into account any
specialized knowledge or experience on the part of the person, the relationship of the
purchase price to the value of the property as uncontaminated, commonly known or
reasonably ascertainable information about the property, the obviousness of the
presence or likely presence of contamination at the property, and the ability to detect
the contamination by appropriate inspection.
3. A person who has acquired real property may establish a rebuttable presumption that
that person has made all appropriate inquiry if that person establishes that,
immediately before or at the time of acquisition, that person performed an investigation
of the property, conducted by an environmental professional, to determine or discover
the obviousness of the presence or likely presence of a release or threatened release
of hazardous waste or substances on the property.
4. The presumption does not arise unless the person has maintained a compilation of the
information reviewed in the course of the investigation.
5. This section does not diminish the liability of any previous owner or operator of the
property who would otherwise be liable under this chapter and nothing in this section
affects the liability under this chapter of a person who, by any act or omission, caused
or contributed to the release or threatened release of a hazardous waste or substance
that is the subject of the action relating to the property.
6. As used in this section, environmental professional means an individual, or entity
managed or controlled by an individual, who, through academic training, occupational
experience, and reputation, such as engineers, environmental consultants, and
attorneys, can objectively conduct one or more aspects of an environmental
investigation.
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