Applicability of releases from solid waste management units requirements

1. Applicability. a. Except as provided in subsection 2, sections 33.1-24-05-47 through 33.1-24-05-58 apply to owners or operators of facilities that treat, store, or dispose of hazardous waste. The owner or operator must satisfy the requirements identified in subdivision b for all wastes (or constituents thereof) contained in solid waste management units at the facility, regardless of the time at which waste was placed in such units. b. All solid waste management units must comply with the requirements in section 33.1-24-05-58. A surface impoundment, waste pile, and land treatment unit, or landfill that receives hazardous waste after July 26, 1982, (hereinafter referred to as a "regulated unit") must comply with the requirements of sections 33.1-24-05-48 through 33.1-24-05-57 in lieu of section 33.1-24-05-58 for purposes of detecting, characterizing, and responding to releases to the uppermost aquifer. The financial responsibility requirements of section 33.1-24-05-58 apply to regulated units. 2. The owner's or operator's regulated unit or units, are not subject to regulation for releases into the uppermost aquifer under sections 33.1-24-05-47 through 33.1-24-05-58 if: a. The owner or operator is exempted under section 33.1-24-05-01; or b. The owner or operator operates a unit which the department finds: (1) Is an engineered structure; (2) Does not receive or contain liquid waste or waste containing free liquids; (3) Is designed and operated to exclude liquid, precipitation, and other run-on and runoff; (4) Has both inner and outer layers of containment enclosing the waste; (5) Has a leak detection system built into each containment layer; (6) The owner or operator will provide continuing operation and maintenance of these leak detection systems during the active life of the unit and the closure and postclosure care periods; and (7) To a reasonable degree of certainty, will not allow hazardous constituents to migrate beyond the outer containment layer prior to the end of the postclosure care period. c. The department finds, pursuant to subsection 4 of section 33.1-24-05-167, that the treatment zone of a land treatment unit that qualifies as a regulated unit does not contain levels of hazardous constituents that are above background levels of those constituents by an amount that is statistically significant, and if an unsaturated zone monitoring program meeting the requirements of section 33.1-24-05-165 has not shown a statistically significant increase in hazardous constituents below the treatment zone during the operating life of the unit. An exemption under this subsection can only relieve an owner or operator of responsibility to meet the requirements of sections 33.1-24-05-47 through 33.1-24-05-58 during the postclosure care period; d. The department finds that there is no potential for migration of liquid from a regulated unit to the uppermost aquifer during the active life of the regulated unit (including the closure period) and the postclosure care period specified under section 33.1-24-05-66. This demonstration must be certified by a qualified geologist or geotechnical engineer. In order to provide an adequate margin of safety in the prediction of potential migration of liquid, the owner or operator shall base any predictions made under this subsection on assumptions that maximize the rate of liquid migration; or e. The owner or operator designs and operates a pile in compliance with subsection 3 of section 33.1-24-05-130. 3. The requirements of sections 33.1-24-05-47 through 33.1-24-05-58 apply during the active life of the regulated unit (including the closure period). After closure of the regulated unit, the requirements of sections 33.1-24-05-47 through 33.1-24-05-58: a. Do not apply if all waste, waste residues, contaminated containment system components, and contaminated subsoils are removed or decontaminated at closure; b. Apply during the postclosure care period under section 33.1-24-05-66 if the owner or operator is conducting a detection monitoring program under section 33.1-24-05-55; or c. Apply during the compliance period under section 33.1-24-05-53 if the owner or operator is conducting a compliance monitoring program under section 33.1-24-05-56 or a corrective action program under section 33.1-24-05-57. 4. Sections 33.1-24-05-47 through 33.1-24-05-58 may apply to miscellaneous units when necessary to comply with sections 33.1-24-05-301 through 33.1-24-05-303.