Section 33.1-20-08-07 - [Effective until 10/1/2024] Closure and postclosure care1. Inactive CCR surface impoundments. a. Inactive CCR surface impoundments are subject to all of the requirements of this chapter applicable to existing CCR surface impoundments.b. The owner or operator of an inactive CCR surface impoundment shall include documentation of the requirements of this subdivision with the permit modification application required by subsection 9 of section 33.1-20-08-02. (1) Recordkeeping, notification, and internet requirements.(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.(2) Location restrictions. (a) The owner or operator of the inactive CCR surface impoundment shall: [1] Complete the demonstration for placement above the uppermost aquifer as set forth by subsection 1 of section 33.1-20-08-03;[2] Complete the demonstration for wetlands as set forth by subsection 2 of section 33.1-20-08-03;[3] Complete the demonstration for fault areas as set forth by subsection 3 of section 33.1-20-08-03;[4] Complete the demonstration for seismic impact zones as set forth by subsection 4 of section 33.1-20-08-03;[5] Complete the demonstration for unstable areas as set forth by subsection 5 of section 33.1-20-08-03.(b) An owner or operator of an inactive CCR surface impoundment who fails to demonstrate compliance with the requirements of subparagraph a is subject to the closure requirements of paragraph 1 of subdivision b of subsection 2.(3) Design criteria. The owner or operator of the inactive CCR surface impoundment shall: (a) Complete the documentation of liner type as set forth by subdivision a of subsection 2 of section 33.1-20-08-04.(b) Place on or immediately adjacent to the CCR unit the permanent identification marker as set forth by paragraph 1 of subdivision a of subsection 3 of section 33.1-20-08-04.(c) Prepare and maintain an emergency action plan as set forth by paragraph 3 of subdivision a of subsection 3 of section 33.1-20-08-04.(d) Compile information relating to construction as set forth by subdivision c of subsection 3 of section 33.1-20-08-04.(e) Complete the initial hazard potential classification, structural stability, and safety factor assessments as set forth by paragraph 2 of subdivision a and subdivisions d and e of subsection 3 of section 33.1-20-08-04.(4) Operating criteria. The owner or operator of the inactive CCR surface impoundment shall: (a) Prepare the initial CCR fugitive dust control plan as set forth in subsection 1 of section 33.1-20-08-05.(b) Prepare the initial inflow design flood control system plan as set forth in subsection 3 of section 33.1-20-08-05.(c) Initiate the inspections by a qualified person as set forth by subsection 4 of section 33.1-20-08-05.(d) Complete the initial annual inspection by a qualified professional engineer set forth in subsection 4 of section 33.1-20-08-05.(5) Ground water monitoring and corrective action. The owner or operator of the inactive CCR surface impoundment shall: (a) Comply with ground water monitoring requirements set forth in subdivision b of subsection 1 of section 33.1-20-08-06 and subdivision b of subsection 4 of section 33.1-20-08-06; and(b) Prepare the initial ground water monitoring and corrective action report as set forth in subdivision e of subsection 1 of section 33.1-20-08-06.(6) Closure and postclosure care. The owner or operator of the inactive CCR surface impoundment shall: (a) Prepare an initial written closure plan as set forth in subdivision b of subsection 3; and(b) Prepare an initial written postclosure care plan as set forth in subdivision d of subsection 5.2. Closure or retrofit of CCR units. a. The owner or operator of an existing unlined CCR surface impoundment, as determined under subdivision a of subsection 2 of section 33.1-20-08-04, is subject to the requirements of paragraph 1. (1) Except as provided by paragraph 3, an owner or operator of an existing unlined CCR surface impoundment shall cease placing CCR and non-CCR waste streams into the unlined CCR surface impoundment and either retrofit or close the CCR unit in accordance with the requirements of subsection 3.(2) An owner or operator of an existing unlined CCR surface impoundment that closes in accordance with paragraph 1 shall include a statement in the notification required under subdivision g of subsection 3 or paragraph 5 of subdivision j of subsection 3, that the CCR surface impoundment is closing or retrofitting under the requirements of paragraph 1.(3) The time frame specified in paragraph 1 does not apply if the owner or operator complies with the alternative closure procedures specified in subsection 4.(4) At any time after the initiation of closure under paragraph 1, the owner or operator may cease closure activities and initiate a retrofit of the CCR unit in accordance with the requirements of subdivision j of subsection 3.b. The owner or operator of an existing CCR surface impoundment is subject to the requirements of paragraph 1. (1) Noncompliance with location standards. (a) 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.(2) Within six months of either failing to complete the initial or any subsequent periodic safety factor assessment required by subdivision e of subsection 3 of section 33.1-20-08-04 by the deadlines specified in subdivision f of subsection 3 of section 33.1-20-08-04 or failing to document that the calculated factors of safety for the existing CCR surface impoundment achieve the minimum safety factors specified in subdivision e of subsection 3 of section 33.1-20-08-04, the owner or operator of the CCR surface impoundment shall cease placing CCR and non-CCR waste streams into such CCR unit and close the CCR unit in accordance with the requirements of subsection 3. (3) An owner or operator of an existing CCR surface impoundment that closes in accordance with paragraphs 1 or 2 shall include a statement in the closure notification required under subdivision g of subsection 3 that the CCR surface impoundment is closing under the requirements.(4) The time frame specified in paragraph 1 does not apply if the owner or operator complies with the alternative closure procedures specified in subsection 4.c. The owner or operator of a new CCR surface impoundment is subject to the requirements of paragraph 1. (1) Within six months of either failing to complete the initial or any subsequent periodic safety factor assessment required by subdivision e of subsection 3 of section 33.1-20-08-04 by the deadlines specified in subdivision f of subsection 3 of section 33.1-20-08-04 or failing to document that the calculated factors of safety for the new CCR surface impoundment achieve the minimum safety factors specified in subdivision e of subsection 3 of section 33.1-20-08-04, the owner or operator of the CCR surface impoundment must cease placing CCR and non-CCR waste streams into such CCR unit and close the CCR unit in accordance with the requirements of subsection 3.(2) An owner or operator of a new CCR surface impoundment that closes in accordance with paragraph 1 shall include a statement in the closure notification required under subdivision g of subsection 3 that the CCR surface impoundment is closing under the requirements of this subdivision.d. The owner or operator of an existing CCR landfill is subject to the requirements of paragraph 1. (1) Except as provided by paragraph 3, within six months of determining that an existing CCR landfill has not demonstrated compliance with the location restriction for unstable areas specified in subsection 5 of section 33.1-20-08- 03, the owner or operator of the CCR unit must cease placing CCR and non-CCR waste streams into that landfill and close the CCR unit in accordance with the requirements of subsection 3.(2) An owner or operator of an existing CCR landfill that closes in accordance with paragraph 1 shall include a statement in the closure notification required under subdivision g of subsection 3 of this section that the CCR landfill is closing under the requirements of this subdivision.(3) The time frame specified in paragraph 1 does not apply if the owner or operator complies with the alternative closure procedures specified in subsection 4.3. Criteria for conducting the closure or retrofit of CCR units. a. Closure of a CCR landfill, CCR surface impoundment, or any lateral expansion of a CCR unit must be completed either by leaving the CCR in place and installing a final cover system or through removal of the CCR and decontamination of the CCR unit, as described in subdivisions b through i. Retrofit of a CCR surface impoundment must be completed in accordance with the requirements in subdivision j.b. Written closure plan. (1) Content of the plan. The owner or operator of a CCR unit shall prepare a written closure plan that describes the steps necessary to close the CCR unit at any point during the active life of the CCR unit consistent with recognized and generally accepted good engineering practices. The written closure plan must include: (a) A narrative description of how the CCR unit will be closed in accordance with this subsection.(b) If closure of the CCR unit will be accomplished through removal of CCR from the CCR unit, a description of the procedures to remove the CCR and decontaminate the CCR unit in accordance with subdivision c.(c) If closure of the CCR unit will be accomplished by leaving CCR in place, a description of the final cover system and the methods and procedures to be used to install the final cover. The closure plan must also discuss how the final cover system will achieve the performance standards specified in subdivision d.(d) An estimate of the maximum inventory of CCR ever onsite over the active life of the CCR unit.(e) An estimate of the largest area of the CCR unit ever requiring a final cover at any time during the CCR unit's active life.(f) A schedule for completing all activities necessary to satisfy the closure criteria in this subsection, including an estimate of the year in which all closure activities for the CCR unit will be completed. The schedule 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.(2) Time frames for preparing the initial written closure plan. (a) Existing CCR units. The owner or operator of the CCR unit shall include the initial written closure plan consistent with the requirements specified in paragraph 1 with the application for a permit 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.(3) Amendment of a written closure plan. (a) The owner or operator may amend the initial or any subsequent written closure plan at any time with approval by the department.(b) The owner or operator shall amend the written closure plan whenever: [1] There is a change in the operation of the CCR unit that would substantially affect the written closure plan in effect; or[2] Before or after closure activities have commenced, unanticipated events necessitate a revision of the written closure plan.(c) The owner or operator shall amend the closure plan at least sixty days prior to a planned change in the operation of the facility or CCR unit, or no later than sixty days after an unanticipated event requires the need to revise an existing written closure plan. If a written closure plan is revised after closure activities have commenced for a CCR unit, the owner or operator shall amend the current closure plan no later than thirty days following the triggering event.(4) The owner or operator of the CCR unit shall obtain a written certification from a qualified professional engineer that the initial and any amendment of the written closure plan meets the requirements of this subsection.c. Closure by removal of CCR. An owner or operator may elect to close a CCR unit by removing and decontaminating all areas affected by releases from the CCR unit. Coal combustion residuals removal and decontamination of the CCR unit are complete when constituent concentrations throughout the CCR unit and any areas affected by releases from the CCR unit have been removed and ground water monitoring concentrations do not exceed the established ground water protection standards for constituents listed in appendix II to this chapter.d. Closure performance standard when leaving CCR in place. (1) The owner or operator of a CCR unit shall ensure that, at a minimum, the CCR unit is closed in a manner that will: (a) Control, minimize, or eliminate, to the maximum extent feasible, postclosure infiltration of liquids into the waste and releases of CCR, leachate, or contaminated run-off to the ground or surface waters or to the atmosphere;(b) Preclude the probability of future impoundment of water, sediment, or slurry;(c) Include measures that provide for major slope stability to prevent the sloughing or movement of the final cover system during the closure and postclosure care period;(d) Minimize the need for further maintenance of the CCR unit; and(e) Be completed in the shortest amount of time consistent with recognized and generally accepted good engineering practices.(2) Drainage and stabilization of CCR surface impoundments. Prior to installing the final cover system, the owner or operator of a CCR surface impoundment or any lateral expansion of a CCR surface impoundment shall: (a) Eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and waste residues.(b) Stabilize remaining wastes sufficiently to support the final cover system.(3) Final cover system. If a CCR unit is closed by leaving CCR in place, the owner or operator shall install a final cover system that is designed to minimize infiltration and erosion, and at a minimum, meets the requirements of subparagraph a, or the requirements of the alternative final cover system specified in subparagraph b. The design of the final cover system must be included in the written closure plan. (a) The final cover system must be designed and constructed to meet these criteria: [1] The infiltration of liquids through the closed CCR unit must be minimized by the use of an infiltration layer that contains a minimum of eighteen inches [45.7 centimeters] of earthen material. The saturated hydraulic conductivity of the infiltration layer must be no greater than 1 x 10 -7 centimeters per second.[2] A second layer of twelve inches [30.5 centimeters] or more of clay-rich soil material suitable for serving as a plant root zone must be placed over the compacted layer. This layer is not required if the CCR unit contains only bottom ash.[3] The erosion of the final cover system must be minimized by the use of an erosion layer that contains a minimum of six inches [15.2 centimeters] of suitable plant growth material over the covered CCR unit and the facility planted with adapted grasses. The total depth of final cover must be three feet [91.4 centimeters] or more unless the CCR unit contains only bottom ash, in which case the total depth of final cover must be two feet [61.0 centimeters] or more.[4] The disruption of the integrity of the final cover system must be minimized through a design that accommodates settling and subsidence.(b) The owner or operator may select an alternative final cover system design, provided the alternative final cover system is designed and constructed to meet these criteria: [1] The design of the final cover system must include an infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specified in items 1 and 2 of subparagraph a or an average long-term percolation rate less than 0.2 inches [5.0 millimeters] per year.[2] The design of the final cover system must include an erosion layer that provides equivalent protection from wind or water erosion as the erosion layer specified in item 3 of subparagraph a.[3] The disruption of the integrity of the final cover system must be minimized through a design that accommodates settling and subsidence.(c) The owner or operator of the CCR unit shall obtain a written certification from a qualified professional engineer that the design of the final cover system meets the requirements of this section.(4) Use of CCR in design and construction of final cover system. (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:[1] The CCR placed for construction of the final cover system must have been generated at the facility and be located at the facility at the time closure was initiated;[2] For incised CCR surface impoundments the CCR must be placed entirely above the highest elevation of the surrounding natural ground surface where the CCR surface impoundment was constructed;[3] For all other CCR units, CCR must be placed entirely above the highest elevation of CCR in the unit, following dewatering and stabilization;[4] The CCR must not be placed outside the plane extending vertically from the line formed by the intersection of the crest of the CCR surface impoundment and the upstream slope of the CCR surface impoundment; and[5] The final cover system must be constructed with either: [a] A slope not steeper than five percent grade after allowance for settlement; or[b] At a steeper grade, if the department determines that the steeper slope is necessary based on conditions at the site, to facilitate runoff and minimize erosion, and that side slopes are evaluated for erosion potential based on a stability analysis to evaluate possible erosion potential. The stability analysis, at a minimum, must evaluate the site geology; characterize soil shear strength; construct a slope stability model; establish ground water and seepage conditions, if any; select loading conditions; locate critical failure surface; and iterate until minimum factor of safety is achieved. e. Initiation of closure activities. Except as provided for in paragraph 5 and subsection 4, the owner or operator of a CCR unit must commence closure of the CCR unit no later than the applicable time frames specified in either paragraph 1, 2, or 3. (1) The owner or operator shall commence closure of the CCR unit no later than thirty days after the date on which the CCR unit either: (a) Receives the known final receipt of waste, either CCR or any non-CCR waste stream; or(b) Removes the known final volume of CCR from the CCR unit for the purpose of beneficial use of CCR.(2) Except as provided by paragraph 3, the owner or operator shall commence closure of a CCR unit that has not received CCR or any non-CCR waste stream or is no longer removing CCR for the purpose of beneficial use within two years of the last receipt of waste or within two years of the last removal of CCR material for the purpose of beneficial use.(3) Notwithstanding paragraph 2, the owner or operator of the CCR unit may secure an additional two years to initiate closure of the idle unit provided the owner or operator provides written documentation to the department that the CCR unit will continue to accept wastes or will start removing CCR for beneficial use. The documentation must be supported by, at a minimum, the information specified in subparagraphs a and b. The owner or operator may obtain two-year extensions provided the owner or operator continues to be able to demonstrate that there is reasonable likelihood that the CCR unit will accept wastes in the foreseeable future or will remove CCR from the unit for beneficial use. The owner or operator shall submit each completed demonstration to the department and place it in the facility's operating record prior to the end of any two-year period. (a) Information documenting that the CCR unit has remaining storage or disposal capacity or that the CCR unit can have CCR removed for the purpose of beneficial use; and(b) Information demonstrating that there is a reasonable likelihood that the CCR unit will resume receiving CCR or non-CCR waste streams in the foreseeable future or that CCR can be removed for the purpose of beneficial use. The narrative must include a best estimate as to when the CCR unit will resume receiving CCR or non-CCR waste streams. The situations listed in items 1 through 4 are examples of situations that would support a determination that the CCR unit will resume receiving CCR or non-CCR waste streams in the foreseeable future. [1] Normal plant operations include periods during which the CCR unit does not receive CCR or non-CCR waste streams, such as the alternating use of two or more CCR units whereby at any point in time one CCR unit is receiving CCR while CCR is being removed from a second CCR unit after its dewatering.[2] The CCR unit is dedicated to a coal-fired boiler unit that is temporarily idled (e.g., CCR is not being generated) and there is a reasonable likelihood that the coal-fired boiler will resume operations in the future.[3] The CCR unit is dedicated to an operating coal-fired boiler (i.e., CCR is being generated); however, no CCR is being placed in the CCR unit because the CCR is being entirely diverted to beneficial uses, but there is a reasonable likelihood that the CCR unit will again be used in the foreseeable future.[4] The CCR unit currently receives only non-CCR waste streams and those non-CCR waste streams are not generated for an extended period of time, but there is a reasonable likelihood that the CCR unit will again receive non-CCR waste streams in the 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.
(4) For purposes of this chapter, closure of the CCR unit has commenced if the owner or operator has ceased placing waste and completes any of the following actions or activities: (a) Taken any steps necessary to implement the written closure plan required by 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.(5) The time frames specified in paragraphs 1 and 2 do not apply to any owners or operators of CCR units under closure as required by subdivisions a through d of subsection 2.f. Completion of closure activities. (1) Except as provided for in paragraphs 2 and 3, the owner or operator shall complete closure of the CCR unit: (a) For existing and new CCR landfills and any lateral expansion of a CCR landfill, within six months of commencing closure activities.(b) For existing and new CCR surface impoundments and any lateral expansion of a CCR surface impoundment, within five years of commencing closure activities.(2) Extensions of closure time frames. With approval by the department, the time frames for completing closure of a CCR unit specified under paragraph 1 may be extended if the owner or operator can demonstrate that it was not feasible to complete closure of the CCR unit within the required time frames due to factors beyond the facility's control. If the owner or operator is seeking a time extension beyond the time specified in the written closure plan as required by subdivision b, the demonstration must include a narrative discussion providing the basis for additional time beyond that specified in the closure plan. The owner or operator shall place each completed demonstration, if more than one time extension is sought, in the facility's operating record prior to the end of any two-year period. Factors that may support such a demonstration include: (a) Complications stemming from the climate and weather, such as unusual amounts of precipitation or a significantly shortened construction season;(b) Time required to dewater a surface impoundment due to the volume of CCR contained in the CCR unit or the characteristics of the CCR in the unit;(c) The geology and terrain surrounding the CCR unit will affect the amount of material needed to close the CCR unit; or(d) Time required or delays caused by the need to coordinate with and obtain necessary approvals and permits from a state or other agency.(3) Maximum time extensions. (a) CCR surface impoundments of forty acres [16.2 hectares] or smaller may extend the time to complete closure by no longer than two years.(b) CCR surface impoundments larger than forty acres [16.2 hectares] may extend the time frame to complete closure of the CCR unit multiple times, in two-year increments. For each two-year extension sought, the owner or operator shall substantiate the factual circumstances demonstrating the need for the extension. No more than a total of five two-year extensions may be obtained for any CCR surface impoundment.(c) CCR landfills may extend the time frame to complete closure of the CCR unit multiple times, in one-year increments. For each one-year extension sought, the owner or operator 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.(4) In order to obtain additional time extensions to complete closure of a CCR unit beyond the times provided by paragraph 1, the owner or operator of the CCR unit shall include with the demonstration required by paragraph 2 the following statement signed by the owner or operator or an authorized representative: I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment.
(5) Upon completion, the owner or operator of the CCR unit shall obtain a certification from a qualified professional engineer verifying that closure has been completed in accordance with the closure plan specified in subdivision b and the requirements of this subsection.g. Before starting closure of a CCR unit, the owner or operator shall prepare a notification of intent to close a CCR unit. The notification must include the certification by a qualified professional engineer for the design of the final cover system as required by subparagraph c of paragraph 3 of subdivision d, if applicable. The owner or operator has completed the notification when it has been submitted to the department and placed in the facility's operating record.h. Within thirty days of completion of closure of the CCR unit, the owner or operator shall prepare a notification of closure of a CCR unit. The notification must include the certification by a qualified professional engineer required by paragraph 5 of subdivision f. The owner or operator has completed the notification when it has been submitted to the department and placed in the facility's operating record.i. Deed notations. (1) Except as provided by paragraph 4, following closure of a CCR unit, the owner or operator shall record a notation on the deed to the property, or some other instrument that is normally examined during title search.(2) The notation on the deed must in perpetuity notify any potential purchaser of the property that: (a) The land has been used as a CCR unit; and(b) Its use is restricted under the postclosure care requirements as provided by subparagraph c of paragraph 1 of subdivision d of subsection 5.(3) Within sixty days of recording a notation on the deed to the property, the owner or operator shall submit a notification to the department stating that the deed notation has been recorded. The owner or operator has completed the notification when it has been placed in the facility's operating record.(4) An owner or operator that closes a CCR unit by removal of all CCR materials in accordance with subdivision c is not subject to the requirements of paragraphs 1 through 3.j. Criteria to retrofit an existing CCR surface impoundment. (1) To retrofit an existing CCR surface impoundment, the owner or operator must: (a) First remove all CCR, including any contaminated soils and sediments from the CCR unit; and(b) Comply with the requirements in subdivision b of subsection 2 of section 33.1-20-08-04.(c) A CCR surface impoundment undergoing a retrofit remains subject to all other requirements of this chapter, including the requirement to conduct any necessary corrective action.(2) Written retrofit plan. (a) Content of the plan. The owner or operator shall prepare a written retrofit plan for approval by the department that describes the steps necessary to retrofit the CCR unit consistent with recognized and generally accepted good engineering practices. The written retrofit plan must include: [1] A narrative description of the specific measures that will be taken to retrofit the CCR unit in accordance with this section.[2] A description of the procedures to remove all CCR and contaminated soils and sediments from the CCR unit.[3] An estimate of the maximum amount of CCR that will be removed as part of the retrofit operation.[4] An estimate of the largest area of the CCR unit that will be affected by the retrofit operation.[5] A schedule for completing all activities necessary to satisfy the retrofit criteria in this section, including an estimate of the year in which retrofit activities of the CCR unit will be completed.(b) time frames for preparing the initial written retrofit plan. [1] No later than sixty days prior to the date of initiating retrofit activities, the owner or operator shall prepare the initial written retrofit plan. For purposes of this chapter, initiation of retrofit activities has commenced if the owner or operator has ceased placing waste in the unit and completes any of the following actions or activities: [a] Taken any steps necessary to implement the written retrofit plan;[b] Submitted a completed application for a permit or permit modification; or[c] Taken any steps necessary to comply with any state standards that are a prerequisite, or are otherwise applicable, to initiating or completing the retrofit of a CCR unit.[2] The owner or operator has completed the written retrofit plan when the plan, including the certification required by subparagraph d, has been approved by the department and placed in the facility's operating record.(c) Amendment of a written retrofit plan. [1] The owner or operator may amend the initial or any subsequent written retrofit plan at any time with approval by the department.[2] The owner or operator shall amend the written retrofit plan whenever: [a] There is a change in the operation of the CCR unit that would substantially affect the written retrofit plan in effect; or[b] Before or after retrofit activities have commenced, unanticipated events necessitate a revision of the written retrofit plan.[3] The owner or operator shall amend the retrofit plan at least sixty days prior to a planned change in the operation of the facility or CCR unit, or no later than sixty days after an unanticipated event requires the revision of an existing written retrofit plan. If a written retrofit plan is revised after retrofit activities have commenced for a CCR unit, the owner or operator shall amend the current retrofit plan no later than thirty days following the triggering event.(d) The owner or operator of the CCR unit shall obtain a written certification from a qualified professional engineer that the activities outlined in the written retrofit plan, including any amendment of the plan, meet the requirements of this section.(3) Deadline for completion of activities related to the retrofit of a CCR unit. Any CCR surface impoundment that is being retrofitted must complete all retrofit activities within the same time frames and procedures specified for the closure of a CCR surface impoundment in subdivision f or, where applicable, subsection 4.(4) Upon completion, the owner or operator shall obtain a certification from a qualified professional engineer verifying that the retrofit activities have been completed in accordance with the retrofit plan.(5) Before initiating the retrofit of a CCR unit, the owner or operator shall prepare a notification of intent to retrofit a CCR unit. The owner or operator has completed the notification when it has been submitted to the department and placed in the facility's operating record.(6) Within thirty days of completing the retrofit activities the owner or operator shall prepare a notification of completion of retrofit activities. The notification must include the certification by a qualified professional engineer as required by paragraph 4. The owner or operator has completed the notification when it has been submitted to the department and placed in the facility's operating record.
(7) At any time after the initiation of a CCR unit retrofit, the owner or operator may cease the retrofit and initiate closure of the CCR unit in accordance with the requirements of this subsection.4. Alternative closure requirements. The owner or operator of a CCR landfill, CCR surface impoundment, or any lateral expansion of a CCR unit that is subject to closure pursuant to subdivisions a, b, or d of subsection 2 may continue to receive CCR or non-CCR waste streams in the unit provided the owner or operator meets the requirements of either subdivision a, b, or c and receives approval by the department. a. No alternative CCR disposal capacity. (1) Notwithstanding the provisions of subdivisions a, b, or d of subsection 2, a CCR unit may continue to receive CCR if the owner or operator of the CCR unit certifies that the CCR shall continue to be managed in that CCR unit due to the absence of alternative disposal capacity both onsite and offsite of the facility. To qualify under this paragraph, the owner or operator of the CCR unit shall document that all of the following conditions have been met:(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.(2) Once alternative capacity is available, the CCR unit must cease receiving CCR and initiate closure following the time frames in subdivisions e and f of subsection 3.(3) If no alternative capacity is identified within five years after the initial certification, the CCR unit must cease receiving CCR and close in accordance with the time frames in subdivisions e and f of subsection 3.b. No alternative capacity for non-CCR waste streams. (1) Notwithstanding the provisions of subdivisions a, b, or d of subsection 2, a CCR unit may continue to receive non-CCR waste streams if the owner or operator of the CCR unit certifies that the waste streams must continue to be managed in that CCR unit due to the absence of alternative capacity both onsite and offsite the facility. For these non-CCR waste streams, capacity means the capacity of impoundments, tanks, and other conveyances to manage daily flows currently handled by the unit. To qualify under this paragraph, the owner or operator of the CCR unit shall document that all of the following conditions have been met for each non-CCR waste stream that will continue to be received by the CCR unit: (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.(2) Once alternative capacity is available for a given waste stream, the CCR unit must cease receiving that waste stream, and in the case that alternate capacity has been found for all waste streams, the facility shall initiate closure of the CCR unit following the time frames in subdivisions e and f of subsection 3.(3) If no alternative capacity is identified within five years after the initial certification, the CCR unit must cease receiving all waste streams and close in accordance with the time frames in subdivisions e and f of subsection 3.c. Permanent cessation of a coal-fired boiler by a date certain. (1) Notwithstanding the provisions of subdivisions a, b, or d of subsection 2, a CCR unit may continue to receive CCR if the owner or operator certifies that the facility will cease operation of the coal-fired boilers within the time frames specified in paragraphs 2 through 4, but in the interim period, prior to closure of the coal-fired boiler, the facility must continue to use the CCR unit due to the absence of alternative disposal capacity both onsite and offsite of the facility. For wastewaters capacity means the capacity of impoundments, tanks, and other units to manage daily flows currently handled by the unit closing. To qualify under this paragraph, the owner or operator of the CCR unit shall document that all of the following conditions have been met: (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.(2) For a CCR surface impoundment that is forty acres [16.2 hectares] or smaller, the coal-fired boiler must cease operation and the CCR surface impoundment must have completed closure no later than October 17, 2023.(3) For a CCR surface impoundment that is larger than forty acres [16.2 hectares], the coal-fired boiler must cease operation, and the CCR surface impoundment must complete closure no later than October 17, 2028.(4) For a CCR landfill, the coal-fired boiler must cease operation, and the CCR landfill must complete closure no later than April 19, 2021.d. Required notices and progress reports. An owner or operator of a CCR unit that closes in accordance with subparagraphs a, b, or c must complete the following notices and progress reports and submit them to the department: (1) Within six months of becoming subject to closure pursuant to subdivisions a, b, or d of subsection 2, the owner or operator shall prepare and place in the facility's operating record a notification of intent to comply with the alternative closure requirements of this subsection. The notification must describe why the CCR unit qualifies for the alternative closure provisions, in addition to providing the documentation and certifications required by subdivisions a, b, or c.(2) The owner or operator shall prepare the periodic progress reports in addition to describing any problems encountered and a description of the actions taken to resolve the problems. The annual progress reports must be completed according to the following schedule: (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.(3) An owner or operator of a CCR unit also shall prepare the notification of intent to close a CCR unit as required by subdivision g of subsection 3.5. Postclosure care requirements. a. Applicability. (1) Except as provided by paragraph 2, this subsection applies to the owners or operators of CCR landfills, CCR surface impoundments, and all lateral expansions of CCR units that are subject to the closure criteria under subsection 3.(2) An owner or operator of a CCR unit that elects to close a CCR unit by removing CCR as provided by subdivision c of subsection 3 is not subject to the postclosure care criteria under this subsection.b. Postclosure care maintenance requirements. Following closure of the CCR unit, the owner or operator shall conduct postclosure care for the CCR unit, which must consist of at least the following: (1) Maintaining the integrity and effectiveness of the final cover system, including making repairs to the final cover as necessary to correct the effects of settlement, subsidence, erosion, or other events, and preventing run-on and run-off from eroding or otherwise damaging the final cover;(2) If the CCR unit is subject to the design criteria under subsection 1 of section 33.1-20-08-04, maintaining the integrity and effectiveness of the leachate collection and removal system and operating the leachate collection and removal system; and(3) Maintaining the ground water monitoring system and monitoring the ground water in accordance with the requirements of section 33.1-20-08-06.c. Postclosure care period. (1) Except as provided by paragraphs 2 and 3, the owner or operator of the CCR unit shall conduct postclosure care for thirty years.(2) If at the end of the postclosure care period the owner or operator of the CCR unit is operating under assessment monitoring in accordance with subsection 5 of section 33.1-20-08-06, the owner or operator shall continue to conduct postclosure care until the owner or operator returns to detection monitoring in accordance with subdivision e of subsection 5 of section 33.1-20-08-06 or subparagraph b of paragraph 3 of subdivision g of subsection 5 of section 33.1-20-08-06.(3) The department may establish an alternate postclosure period upon a determination that the alternate period is sufficient to protect human health and the environment. (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.d. Written postclosure plan. (1) Content of the plan. The owner or operator of a CCR unit shall prepare a written postclosure plan that includes: (a) A description of the monitoring and maintenance activities required in subdivision b for the CCR unit, and the frequency at which these activities will be performed;(b) The name, address, telephone number, and email address of the person or office to contact about the facility during the postclosure care period; and(c) A description of the planned uses of the property during the postclosure period. Postclosure use of the property may not disturb the integrity of the final cover, liner, or any other component of the containment system, or the function of the monitoring systems unless necessary to comply with the requirements in this chapter. Any other disturbance is allowed if the owner or operator of the CCR unit demonstrates that disturbance of the final cover, liner, or other component of the containment system, including any removal of CCR, will not increase the potential threat to human health or the environment. The demonstration must be certified by a qualified professional engineer, and notification must be provided to the department that the demonstration has been placed in the operating record and on the owner's or operator's publicly accessible internet site. (2) Deadline to prepare the initial written postclosure plan. (a) Existing CCR landfills and existing CCR surface impoundments. The owner or operator of the CCR unit shall include the initial written closure plan consistent with the requirements specified in paragraph 1 with the application for a permit 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.(3) Amendment of a written postclosure plan. (a) The owner or operator may amend the initial or any subsequent written postclosure plan developed pursuant to paragraph 1 at any time with approval by the department.(b) The owner or operator shall amend the written closure plan whenever: [1] There is a change in the operation of the CCR unit that would substantially affect the written postclosure plan in effect; or[2] After postclosure activities have commenced, unanticipated events necessitate a revision of the written postclosure plan.(c) The owner or operator shall amend the written postclosure plan at least sixty days prior to a planned change in the operation of the facility or CCR unit, or no later than sixty days after an unanticipated event requires the need to revise an existing written postclosure plan. If a written postclosure plan is revised after postclosure activities have commenced for a CCR unit, the owner or operator shall amend the written postclosure plan no later than thirty days following the triggering event.(4) The owner or operator of the CCR unit shall obtain a written certification from a qualified professional engineer that the initial and any amendment of the written postclosure plan meets the requirements of this subsection.e. Notification of completion of postclosure care period. No later than sixty days following the completion of the postclosure care period, the owner or operator of the CCR unit shall prepare a notification verifying that postclosure care has been completed. The notification must include the certification by a qualified professional engineer verifying that postclosure care has been completed in accordance with the closure plan specified in subdivision d and the requirements of this subsection. The owner or operator has completed the notification when it has been approved by the department and placed in the facility's operating record.N.D. Admin Code 33.1-20-08-07
Adopted by Administrative Rules Supplement 2020-377, July 2020, effective 7/1/2020.General Authority: NDCC 23.1-08-03
Law Implemented: NDCC 23.1-08-03, 23.1-08-04