Location standards

In addition to the general location standards in section 33.1-20-04.1-01, the CCR unit must meet the following if applicable: 1. Placement above the uppermost aquifer. New CCR landfills, existing and new CCR surface impoundments, and all lateral expansions of CCR units must be constructed with a base that is a minimum of five feet [1.52 meters] above the upper limit of the uppermost aquifer or demonstrate that there will not be an intermittent, recurring, or sustained hydraulic connection between any portion of the base of the landfill and the uppermost aquifer due to normal fluctuations in ground water elevations, including the seasonal high water table. a. For a new CCR landfill or surface impoundment or any lateral expansion of a CCR unit, the demonstration that the unit meets the minimum requirements for placement above the uppermost aquifer must be included with the application for a new permit or permit modification. b. The demonstration is considered complete when the demonstration is approved by the department and placed in the facility's operating record. c. An owner or operator of an existing CCR surface impoundment who fails to make the demonstration shall begin closure as required by subparagraph a of paragraph 1 of subdivision b of subsection 2 of section 33.1-20-08-07. d. An owner or operator of a new CCR landfill, new CCR surface impoundment, or any lateral expansion of a CCR unit who fails to make the demonstration is prohibited from placing CCR in the CCR unit. 2. Wetlands. a. New CCR landfills, existing and new CCR surface impoundments, and all lateral expansions of CCR units must not be located in wetlands unless the owner or operator demonstrates no later than the date specified in subdivision b that the CCR unit meets the following requirements: (1) Where applicable under section 404 of the Clean Water Act or applicable state wetlands laws, a clear and objective rebuttal of the presumption that an alternative to the CCR unit is reasonably available that does not involve wetlands. (2) The construction and operation of the CCR unit will not cause or contribute to any of the following: (a) A violation of any applicable state or federal water quality standard; (b) A violation of any applicable toxic effluent standard or prohibition under section 307 of the Clean Water Act; or (c) Jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of a critical habitat, protected under the Endangered Species Act of 1973. (3) The CCR unit will not cause or contribute to a significant degradation of wetlands by addressing all of the following factors: (a) Erosion, stability, and migration potential of native wetland soils, muds, and deposits used to support the CCR unit; (b) Erosion, stability, and migration potential of dredged and fill materials used to support the CCR unit; (c) The volume and chemical nature of the CCR; (d) Impacts on fish, wildlife, and other aquatic resources and their habitat from release of CCR; (e) The potential effects of catastrophic release of CCR to the wetland and the resulting impacts on the environment; and (f) Any additional factors, as necessary, to demonstrate that ecological resources in the wetland are sufficiently protected. (4) To the extent required under section 404 of the Clean Water Act or applicable state wetlands laws, steps have been taken to attempt to achieve no net loss of wetlands, as defined by acreage and function, by first avoiding impacts to wetlands to the maximum extent reasonable as required by paragraphs 1 through 3 of subdivision a of subsection 2 of section 33.1-20-08-03, then minimizing unavoidable impacts to the maximum extent reasonable, and finally offsetting remaining unavoidable wetland impacts through all appropriate and reasonable compensatory mitigation actions (e.g., restoration of existing degraded wetlands or creation of man-made wetlands); and (5) Sufficient information is available to make a reasoned determination with respect to the demonstrations listed in paragraphs 1 through 4. b. The owner or operator of the CCR unit shall complete the demonstrations required by subdivision a by the date specified in paragraph 1. (1) For a new CCR landfill, new CCR surface impoundment, or any lateral expansion of a CCR unit, the owner or operator shall include the demonstration with the application for a new permit or permit modification. (2) The demonstration is considered complete when the demonstration is approved by the department and placed in the facility's operating record. (3) An owner or operator of an existing CCR surface impoundment who fails to make the demonstration showing compliance with the requirements of subdivision a is subject to the closure requirements of paragraph 1 of subdivision b of subsection 2 of section 33.1- 20-08-07. (4) For owners or operators of new and lateral expansions of existing CCR units that fail to demonstrate compliance, waste is prohibited from being placed into the CCR unit. 3. Fault areas. a. New CCR landfills, existing and new CCR surface impoundments, and all lateral expansions of CCR units must not be located within two hundred feet [60 meters] of the outermost damage zone of a fault that has had displacement in Holocene time unless the owner or operator demonstrates by the dates specified in subdivision c that an alternative setback distance of less than two hundred feet [60 meters] will prevent damage to the structural integrity of the CCR unit. b. The owner or operator of the CCR unit must obtain a certification from a qualified professional engineer or a qualified environmental professional stating that the demonstration meets the requirements of subdivision a. c. The owner or operator of the CCR unit shall complete the demonstration required by subdivision a by the date specified in paragraph 1. (1) For a new CCR landfill, new CCR surface impoundment, or any lateral expansion of a CCR unit, the owner or operator shall include the demonstration with the application for a new permit or permit modification. (2) The demonstration is considered complete when the demonstration is approved by the department and placed in the facility's operating record. (3) An owner or operator of an existing surface impoundment who fails to make the demonstration showing compliance with the requirements of subdivision a is subject to the closure requirements of paragraph 1 of subdivision b of subsection 2 of section 33.1-20-08-07. (4) For owners or operators of new and lateral expansions of existing CCR units that fail to demonstrate compliance, waste is prohibited from being placed into the CCR unit. 4. Seismic impact zones. a. New CCR landfills, existing and new CCR surface impoundments, and all lateral expansions of CCR units must not be located in seismic impact zones unless the owner or operator demonstrates by the dates specified in subdivision c that all structural components, including liners, leachate collection and removal systems, and surface water control systems, are designed to resist the maximum horizontal acceleration in lithified earth material for the site. b. The owner or operator of the CCR unit shall obtain a certification from a qualified professional engineer or a qualified environmental professional stating that the demonstration meets the requirements of subdivision a. c. The owner or operator of the CCR unit shall complete the demonstration required by subdivision a by the date specified in paragraph 1. (1) For a new CCR landfill, new CCR surface impoundment, or any lateral expansion of a CCR unit, the owner or operator shall include the demonstration with the application for a new permit or permit modification. (2) The demonstration is considered complete when the demonstration is approved by the department and placed in the facility's operating record. (3) An owner or operator of an existing surface impoundment who fails to make the demonstration showing compliance with the requirements of subdivision a of this subsection is subject to the closure requirements of paragraph 1 of subdivision b of subsection 2 of section 33.1-20-08-07. (4) For owners or operators of new and lateral expansions of existing CCR units that fail to demonstrate compliance, waste is prohibited from being placed into the CCR unit. 5. Unstable areas. a. An existing or new CCR landfill, existing or new CCR surface impoundment, or any lateral expansions of an existing CCR unit must not be located in an unstable area unless the owner or operator demonstrates that recognized and generally accepted good engineering practices have been incorporated into the design of the CCR unit to ensure that the integrity of the structural components of the CCR unit will not be disrupted. b. The owner or operator shall consider all of the following factors, at a minimum, when determining whether an area is unstable: (1) Onsite or local soil conditions that may result in significant differential settling; (2) Onsite or local geologic or geomorphologic features; and (3) Onsite or local human-made features or events (both surface and subsurface). c. The owner or operator of the CCR unit shall obtain a certification from a qualified professional engineer or a qualified environmental professional stating that the demonstration meets the requirements of subdivision a. d. The owner or operator of the CCR unit shall complete the demonstration required by subdivision a by the date specified in paragraph 1. (1) For a new CCR landfill or surface impoundment or any lateral expansion of a CCR landfill or surface impoundment, the demonstration must be included with the application for a new permit or permit modification. (2) The demonstration is considered complete when the demonstration is approved by the department and placed in the facility's operating record. (3) For owners or operators of an existing CCR surface impoundment or CCR landfill that fails to demonstrate compliance, the CCR landfill is subject to the requirements in paragraph 1 of subdivision b of subsection 2 of section 33.1-20-08-07 or paragraph 1 of subdivision d of subsection 2 of section 33.1-20-08-07, respectively. (4) For owners or operators of new CCR units and lateral expansions of existing CCR units that fail to demonstrate compliance, waste is prohibited from being placed into the CCR landfill.