23.1-01-01. Department of environmental quality established — Director appointment.

The department of environmental quality is established and is the primary state environmental agency. The governor shall appoint a director of the department who shall serve at the pleasure of the governor. The director must have a bachelor of science degree or higher from an accredited college in a natural or physical science area of study or be a registered professional engineer. The governor shall seek to appoint a director with at least seven years of environmental health or relevant engineering work experience. Three years of the work experience must include administrative and management responsibilities. Direct work experience in North Dakota is preferred. The director may not engage in any other occupation or business that may conflict with the statutory duties of the director. The position of director of the department is not a classified position, and the governor shall set the salary of the director within the limits of legislative appropriations.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-02. Environmental review advisory council — Members, powers, and duties.

1. The environmental review advisory council is established to advise the department of environmental quality in carrying out its duties. The council consists of the director of the department of water resources, state geologist, and director of the game and fish department, who serve as ex officio members, and ten members appointed by the governor. The director of the department of environmental quality or the director’s designee shall serve as the executive secretary for the council. The appointed members must be:
   1. A representative of county or municipal government;
   2. A representative of manufacturing or agricultural processing;
   3. A representative of the solid fuels industry;
   4. A representative of the liquid and gas fuels industry;
   5. A representative of crop agriculture;
   6. A representative of the waste management industry;
   7. A representative with an agronomy or soil sciences degree;
   8. A representative of the thermal electric generators industry;
   9. A representative of the environmental sciences; and
   10. A representative of the livestock industry.
2. Each appointive member of the council shall serve a four-year term. The governor may fill any vacancy in the membership of the council, and may remove an appointed member of the council for cause. The council members shall select a chairman from among the council members.
3. Council members must be reimbursed by the department of environmental quality for necessary travel and other expenses incurred in the performance of official duties.
4. The council shall hold at least two meetings per year and any other meetings deemed necessary by the chairman or a majority of the council.
5. The council shall:
   1. Review and make recommendations to the department of environmental quality regarding rules and standards relating to environmental quality and the duties of the department. The department may not take final action on any rule or standard without first consulting the council.
   2. Consider any other matter related to the purposes of this title and chapters 61-28, 61-28.1, and 61-28.2 the council deems appropriate and make any recommendation on its own initiative to the department of environmental quality concerning the administration of this title and chapters 61-28, 61-28.1, and 61-28.2.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019; 2021, ch. 488, § 6, effective August 1, 2021.

23.1-01-03. Director — Powers and duties. [Effective through August 31, 2022]

The director of the department of environmental quality shall:

1. Enforce all rules adopted by the department;
2. Hire employees as necessary to carry out the duties of the department and director;
3. Organize the department in the most efficient and effective manner;
4. Maintain, in conjunction with the state department of health, a laboratory to carry out the necessary tests and examinations for purposes of this title, and establish a fee schedule for the tests and examinations;
5. Issue bulletins, news releases, or reports as necessary to inform the public of environmental hazards;
6. Establish rules necessary for maintaining sanitation, including rules for approving plans for water works and sewage systems;
7. Maintain a central environmental laboratory and, if necessary, branch laboratories for the standard function of diagnostic, sanitary, and chemical examinations; and
8. Any other action, including the collection and distribution of environmental quality data, necessary and appropriate for the administration of this title and chapters 61-28, 61-28.1, and 61-28.2.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-03. Director — Powers and duties. [Effective September 1, 2022]

The director of the department of environmental quality shall:

1. Enforce all rules adopted by the department;
2. Hire employees as necessary to carry out the duties of the department and director;
3. Organize the department in the most efficient and effective manner;
4. Maintain, in conjunction with the department of health and human services, a laboratory to carry out the necessary tests and examinations for purposes of this title, and establish a fee schedule for the tests and examinations;
5. Issue bulletins, news releases, or reports as necessary to inform the public of environmental hazards;
6. Establish rules necessary for maintaining sanitation, including rules for approving plans for water works and sewage systems;
7. Maintain a central environmental laboratory and, if necessary, branch laboratories for the standard function of diagnostic, sanitary, and chemical examinations; and
8. Any other action, including the collection and distribution of environmental quality data, necessary and appropriate for the administration of this title and chapters 61-28, 61-28.1, and 61-28.2.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019; 2021, ch. 352, § 269, effective September 1, 2022.

23.1-01-04. Rulemaking authority — Limitations.

1. Except as provided in subsection 2, the department of environmental quality may not adopt any rule for the purpose of the state administering a program under the federal Clean Air Act [42 U.S.C. 7401 et seq.]; federal Clean Water Act [33 U.S.C. 1251 et seq.]; federal Safe Drinking Water Act [42 U.S.C. 300 et seq.]; federal Resource Conservation and Recovery Act [42 U.S.C. 6901 et seq.]; federal Comprehensive Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601 et seq.]; federal Emergency Planning and Community Right to Know Act of 1986 [42 U.S.C. 11001 et seq.]; federal Toxic Substances Control Act [42 U.S.C. 2601 et seq.]; or federal Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.]; which is more stringent than corresponding federal regulations that address the same circumstances. In adopting the rules, the department may incorporate by reference corresponding federal regulations.
2. The department may adopt rules more stringent than corresponding federal regulations or adopt rules where there are no corresponding federal regulations, for the purposes described in subsection 1, only if the department makes a written finding after public comment and hearing and based upon evidence in the record, that corresponding federal regulations are not adequate to protect the public health and the environment of the state. Those findings must be supported by an opinion of the department referring to and evaluating the public health and environmental information and studies contained in the record which form the basis for the department’s conclusions.
3. If the department, upon petition by any person affected by a rule of the department, identifies rules more stringent than federal regulations or rules where there are no corresponding federal regulations, the department shall review and revise those rules to comply with this section within nine months of the filing of the petition.
4. Any person issued a notice of violation, or a denial of a permit or other approval, based upon a rule of the department which is more stringent than a corresponding federal regulation or where there is no corresponding federal regulation, may assert a partial defense to that notice, or a partial challenge to that denial, on the basis and to the extent the department’s rule violates this section by imposing requirements more stringent than corresponding federal regulations, unless the more stringent rule of the department has been adopted in compliance with this section.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-05. Department of environmental quality authorized to transfer future accumulated fees.

The department of environmental quality may from time to time transfer unclaimed fees on deposit with the Bank of North Dakota or other authorized depository to the state general fund when the unclaimed status has existed for a period of at least three years.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-06. Department to employ waste management facility inspectors.

The department of environmental quality shall employ and establish the qualifications, duties, and compensation of at least one full-time inspector for each commercial, nonpublicly owned waste management disposal or incineration facility that accepts more than twenty-five thousand tons [22679.5 kilograms] per year of hazardous waste, industrial waste, nuclear waste, or ash resulting from the incineration of municipal solid waste. This section does not apply to any energy conversion facility or coal mining operation that disposes of its solid waste onsite. The department may require inspectors for those facilities that accept less than twenty-five thousand tons [22679.5 kilograms] per year. The facility inspector shall conduct regular inspections of the operating procedure and conditions of the facility and report the findings to the department on a regular basis. If an inspector discovers a condition at a facility that is likely to cause imminent harm to the health and safety of the public or environment, the inspector shall notify the department. The department shall proceed as provided by sections 23.1-08-19 and 23.1-08-20.

The department shall assess the owner or operator of a waste management facility that accepts hazardous waste, industrial waste, nuclear waste, or ash resulting from the incineration of municipal solid waste an annual fee to pay the salaries, wages, and operating expenses associated with employing an inspector for the facility. The owner or operator of the facility shall submit the fee to the department by July first of each year. Any fees collected must be deposited in the department’s operating fund in the state treasury and any expenditures from the fund are subject to appropriation by the legislative assembly. If a facility begins operation after July first of any year, the owner or operator of the facility shall pay to the department a prorated fee for the fiscal year before the facility may begin accepting waste. Moneys in the waste management facility account may be spent by the department within the limits of legislative appropriation.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-07. Permit or investigatory hearings — Exemption from chapters 28-32 and 54-57.

A permit hearing conducted for purposes of receiving public comment or an investigatory hearing conducted under chapters 23.1-03, 23.1-04, 23.1-06, 23.1-08, 61-28, and 61-28.1 is not an adjudicative proceeding under chapter 28-32 and is not subject to the requirements of chapter 54-57.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-08. Commercial feed, insecticide, fungicide, rodenticide, fertilizer, and soil conditioner laws — Laboratory function.

Notwithstanding any other provision of law, any laboratory test or analysis required under chapter 4.1-34, 4.1-40, or 4.1-41 must be performed by the department of environmental quality for the agriculture commissioner at no charge.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-09. Department of environmental quality — Indirect cost recoveries.

Notwithstanding section 54-44.1-15, the department of environmental quality may deposit indirect cost recoveries in its operating account.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-10. Zoning regulation of concentrated animal feeding operations — Central repository.

The department of environmental quality shall establish, operate, and maintain an electronically accessible central repository for all county and township zoning regulations that pertain to concentrated animal feeding operations. The county auditor of a county and a township clerk of a township having a zoning regulation that pertains to concentrated animal feeding operations shall file the regulation with the department of environmental quality for inclusion in the central repository.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-11. Appeal from permit proceedings.

1. An appeal from the issuance, denial, modification, or revocation of a permit issued under chapter 23.1-03, 23.1-04, 23.1-06, 23.1-08, or 61-28 may be made by the person who filed the permit application, or by any person who is aggrieved by the permit application decision, provided that person participated in or provided comments during the hearing process for the permit application, modification, or revocation. An appeal must be taken within thirty days after the final permit application determination is mailed by first-class mail to the permit applicant and to any interested person who has requested a copy of the final permit determination during the permit hearing process. Except as provided in this section, an appeal of the final permit determination is governed by sections 28-32-40, 28-32-42, 28-32-43, 28-32-44, 28-32-46, and 28-32-49. The department may substitute final permit conditions and written responses to public comments for findings of fact and conclusions of law. Except for a violation of chapter 23.1-03, 23.1-04, 23.1-06, 23.1-08, or 61-28 which occurs after the permit is issued, or any permit condition, rule, order, limitation, or other applicable requirement implementing those chapters which occurs after the permit is issued, any challenge to the department’s issuance, modification, or revocation of the permit or permit conditions must be made in the permit hearing process and may not be raised on any collateral or subsequent legal proceeding, and the applicant and any aggrieved person may raise on appeal only issues that were raised to the department in the permit hearing process.
2. Notwithstanding subsection 1, the department may adopt any procedures governing appeals it determines are necessary and appropriate to develop, implement, or enforce a federally delegated, authorized, or approved program.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019; 2019, ch. 216, § 1, effective April 29, 2019.

23.1-01-11.1. Criminal history background checks.

The department may require an applicant for a license or permit to complete a state and nationwide criminal history record check as provided in section 12-60-24. If the applicant is not an individual, the department may require an individual responsible for the applicant to complete a state and a nationwide criminal history record check as provided in section 12-60-24. The applicant or responsible individual shall submit personal information and fingerprints with the application necessary to complete the state and nationwide criminal history background record check. All costs associated with the state and nationwide criminal history record check are the responsibility of the applicant.

Source: S.L. 2021, ch. 98, § 4, effective August 1, 2021.

23.1-01-12. Rules.

The department may adopt rules consistent with national or regional standards which relate to the promotion of plastic bottle recycling and the maintenance of safe plastic bottle recycling practices in the state.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-13. Contracts for inspections.

The department may contract with public health units and other appropriate entities to conduct inspections on behalf of the department or provide other services.

Source: S.L. 2017, ch. 199, § 16, effective April 29, 2019.

23.1-01-14. Environmental laboratories — Certification required — Fees.

1. The department shall establish and administer a certification program for environmental laboratories. The department may:
   1. Establish standards and procedures for certifying environmental laboratories;
   2. Issue certifications to all applicants who satisfy the requirements for certification under this section and any rules under this section, to renew certifications, and to deny, suspend, or revoke certifications for cause after notice and opportunity for hearing;
   3. Specify in a certification the parameters and analytical procedures the environmental laboratory is certified to conduct;
   4. Conduct onsite evaluations of certified environmental laboratories and applicants for certification;
   5. Establish reasonable fees for certifying environmental laboratories, which must be deposited in the department operating fund and spent subject to appropriation by the legislative assembly;
   6. Reject any testing or data submitted by an environmental laboratory not certified by the department;
   7. Refuse to accept testing or data from a certified environmental laboratory when the department reasonably determines that the results do not meet reasonable criteria for validation; and
   8. Adopt and enforce rules as necessary for implementation of this section.
2. Unless exempted by the department, all environmental laboratories that conduct tests or prepare data for submittal to the department must be certified by the department and comply with any conditions imposed by the certification.
3. The department may grant interim approval to operate an environmental laboratory required to obtain certification under this section if the laboratory was certified under any department program as of July 31, 2019. An environmental laboratory with interim approval shall apply immediately for certification once the department adopts rules for the issuance of certifications under this section. The interim approval is valid until the department acts on the application.

Source: S.L. 2019, ch. 217, § 1, effective August 1, 2019.

23.1-02-01. Definitions.

For the purposes of this chapter:

1. “Department” means the department of environmental quality.
2. “Radiation” means gamma rays and x-rays, alpha and beta particles, high-speed electrons, neutrons, protons, and other nuclear particles; but not sound or radio waves, or visible, infrared, or ultraviolet light.
3. “Radiation machine” means any device that produces radiation when the associated control devices are operated.
4. “Radioactive material” means any material, solid, liquid, or gas, that emits radiation spontaneously.

Source: S.L. 2017, ch. 199, § 17, effective April 29, 2019.

23.1-02-02. Registration agency.

The department is designated as the agency to receive registration applications and to issue certificates of registration.

Source: S.L. 2017, ch. 199, § 17, effective April 29, 2019.

23.1-02-03. Registration required.

Each manufacturer, processor, and refiner of radioactive isotopes and each hospital, clinic, manufacturing establishment, research or educational institution, agricultural experiment station or center, processing mill, or other institution or place of business or process in which radiation is produced or radioactive materials are used, manufactured, processed, packaged, refined, produced, disposed, or concentrated shall register with the department. To register, each manager or officer in charge of any institution or establishment concerned with radioactive materials shall obtain a registration form from the department, complete it, and return it to the department.

Source: S.L. 2017, ch. 199, § 17, effective April 29, 2019.

23.1-02-04. Certificate of registration.

Upon satisfactory completion and submission of the registration form, the department shall issue the applicant a certificate of registration. A completed registration form must provide sufficient information to determine whether the health of the public or persons working in the applicant establishment may be adversely affected by using, manufacturing, processing, packing, refining, disposing, producing, or concentrating of radioactive isotopes and materials.

Source: S.L. 2017, ch. 199, § 17, effective April 29, 2019.

23.1-02-05. Penalty.

Any person required to register under section 23.1-02-03 that fails to register and obtain a certificate of registration is guilty of a class A misdemeanor.

Source: S.L. 2017, ch. 199, § 17, effective April 29, 2019.

23.1-03-01. Definitions.

For the purposes of this chapter:

1. “Byproduct material” means any radioactive material, except special nuclear material, yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material; and the tailings or wastes produced by the extraction, or concentration of uranium or thorium from any ore processed primarily for its source material content.
2. “Commission” means United States nuclear regulatory commission or any successor.
3. “Department” means the department of environmental quality.
4. “General license” means a license effective under rules adopted by the department without the filing of an application to transfer, acquire, own, possess, or use quantities of, or devices or equipment utilizing byproduct, source, special nuclear materials, or other radioactive material occurring naturally or produced artificially.
5. “Ionizing radiation” means gamma rays and x-rays, alpha and beta particles, high-speed electrons, protons, neutrons, and other nuclear particles; but not sound or radio waves, or visible, infrared, or ultraviolet light.
6. “Person” has the same meaning as under section 1-01-49, except it does not mean the commission or federal government agencies licensed by the commission.
7. “Radioactive material” means any solid, liquid, or gas that emits ionizing radiation spontaneously.
8. “Registration” means submitting a satisfactory registration form and receiving a certificate of registration under chapter 23.1-02.
9. “Special nuclear material” means:
   1. Plutonium, uranium-233, uranium enriched in the isotope-233 or in the isotope-235, and any other material the department declares by rule to be special nuclear material after the commission has determined the material to be such, but does not include source material; or
   2. Any material, other than source material, that is artificially enriched by plutonium, uranium-233, uranium enriched in the isotope-233 or in the isotope-235, and any other material the department declares by rule to be special nuclear material after the commission has determined the material to be such.
10. “Specific license” means a license issued after application, to process, generate, dispose, use, manufacture, produce, transfer, receive, acquire, own, or possess quantities of, or devices or equipment utilizing byproduct, source, special nuclear materials, or other radioactive material occurring naturally or produced artificially.
11. “Source material” means uranium, thorium, or any other material the department declares by rule to be source material after the commission has determined the material to be such; or ores containing one or more of those materials, in such concentration as the department declares by rule to be source material after the commission has determined the material in such concentration to be source material.
12. “Surety” means cash deposits, surety bonds, certificates of deposit, deposits of government securities, letters of credit, and other surety mechanisms deemed acceptable by the department.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-02. State radiation control agency.

The department of environmental quality shall administer the statewide licensing and regulatory radiation program under this chapter.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-03. Powers and duties of the department.

For the protection of the public health and safety, the department shall:

1. Evaluate hazards associated with the use of sources of ionizing radiation by inspection and other means.
2. Conduct programs compatible with federal programs for the licensing and regulation of byproduct, source, special nuclear materials, and other radioactive materials.
3. Advise, consult, and cooperate with other public agencies and with affected groups and industries.
4. Administer the statewide licensing and regulatory radiation program.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-04. Licensing and registration of sources of ionizing radiation.

1. The department shall adopt rules for the department to provide general or specific licensing of persons to process, generate, dispose, use, manufacture, produce, acquire, own, receive, possess, or transfer byproduct, source, special nuclear material, and other radioactive materials occurring naturally or produced artificially, or devices or equipment utilizing such materials. The rules must allow the department to amend, suspend, and revoke licenses.
2. The department may exempt certain sources of ionizing radiation or kinds of uses or users from the licensing or registration requirements under this section and in chapter 23.1-02 when the department makes a finding that the exemption of such sources of ionizing radiation or kinds of uses or users will not constitute a significant risk to the health and safety of the public.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-05. Custody of disposal sites.

1. Any radioactive materials license issued or renewed for any activity that results in processing, generating, or disposing of source material, byproduct material, or other radioactive material occurring naturally or produced artificially must contain any terms and conditions the department finds necessary to assure that, prior to termination of the license:
   1. The licensee will comply with any decontamination, decommissioning, and stabilization standards prescribed by the department, which must be equivalent to or more stringent than those of the commission for sites, structures, and equipment used in conjunction with the processing, generation, or disposal of source material, byproduct material, or other radioactive material occurring naturally or produced artificially; and
   2. Ownership of any disposal site and source material, byproduct material, or other radioactive material occurring naturally or produced artificially which resulted from the licensed activity must, subject to subsection 2, be transferred to the United States if provided by federal law, or this state if the state exercises the option to acquire land used for the disposal of the source material, byproduct material, or other radioactive material occurring naturally or produced artificially.
2. 1. The department shall require by rule or order that before the termination of any license, title to the land and any interests in the land, other than land held in trust by the United States for any Indian tribe or owned by an Indian tribe subject to a restriction against alienation imposed by the United States or land already owned by the United States or by the state, used for the disposal of source material, byproduct material, or other radioactive material occurring naturally or produced artificially pursuant to a license, must be transferred to the United States if provided by federal law, or this state, unless the commission and the department determine before the termination that transfer of title is not necessary to protect the public health, safety, or welfare, or to minimize danger to life or property.
   2. If transfer to the state of title to the land, source material, byproduct material, or other radioactive material occurring naturally or produced artificially is required, the department shall maintain the material and land in a manner that will protect the public health, safety, and the environment.
   3. The department may undertake any monitoring, maintenance, and emergency measures necessary to protect the public health and safety for materials and property for which it has assumed custody under this chapter.
   4. The transfer of title to land or source material, byproduct material, or other radioactive material occurring naturally or produced artificially, to the state does not relieve any licensee of liability for any fraudulent or negligent acts done prior to the transfer.
   5. Material and land transferred to either the United States or the state under this section must be transferred without cost to the United States or the state other than administrative and legal costs incurred by the United States or the state in carrying out the transfer.
3. Land used for the disposal of technologically enhanced naturally occurring radioactive material is not subject to subsection 2.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-06. Surety requirements.

1. The department shall establish by rule standards and instructions it deems necessary or appropriate to ensure:
   1. The licensee will provide adequate surety for the completion of all requirements established by the department for the decontamination, decommissioning, and stabilization of sites, structures, and equipment used in conjunction with the processing, generation, or disposal of source material, byproduct material, or other radioactive material occurring naturally or produced artificially; and
   2. If the department determines any long-term maintenance and monitoring is necessary, the licensee will make available the funds required for the necessary maintenance and monitoring, before termination of any license for source material, byproduct material, or other radioactive material occurring naturally or produced artificially.
2. Any funds for long-term site surveillance and control must be available to the state if title and custody of source material, byproduct material, or other radioactive material occurring naturally or produced artificially and its disposal site is transferred to the state under subsection 1 of section 23.1-03-05. The funds must be transferred to the United States if title and custody of the source material, byproduct material, or other radioactive material occurring naturally or produced artificially and its disposal site is transferred to the United States upon termination of any license for source material, byproduct material, or other radioactive material occurring naturally or produced artificially. These funds include sums collected for long-term surveillance and if necessary, maintenance. The funds do not include moneys held as surety where no default had occurred and the reclamation or other bonded activity has been performed.
3. If the department requires a surety for stabilization or funds for long-term surveillance or maintenance, the amounts must be sufficient to ensure compliance with the standards established by the commission and the department pertaining to financial arrangements to ensure adequate stabilization and long-term management of source material, byproduct material, or other radioactive material occurring naturally or produced artificially and its disposal site.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-07. Procedural requirements.

In licensing and regulating the processing, generation, or disposal of source material, byproduct material, or other radioactive material occurring naturally or produced artificially, the department shall provide:

1. In the cases of licenses:
   1. An opportunity, after public notice, for written comments and a public hearing, with a transcript.
   2. A written determination of the action to be taken which is based upon findings included in the determination and upon evidence presented during the public comment period, and which is subject to judicial review.
   3. For each licensed activity that has a significant impact on the human environment, a written analysis prepared by the department which must be available to the public before commencement of hearings, of the impact of the licensed activity on the environment. The analysis must include:
      1. An assessment of the radiological and nonradiological impacts to the public health.
      2. An assessment of any impact on any waterway and ground water.
      3. Consideration of alternatives to the activities to be conducted.
      4. Consideration of the long-term impacts of the licensed activities.
   4. A prohibition of any major construction related to the licensed activities before completing the action under this subsection.
   5. An assurance that management of source material, byproduct material, or other radioactive material occurring naturally or produced artificially is carried out in conformance with applicable standards adopted by the department, the commission, and the United States environmental protection agency.
2. In the case of rulemaking:
   1. An opportunity for public participation through written comments or a public hearing.
   2. An opportunity for judicial review.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-08. Additional authorities.

The department may require persons exempt from licensing to conduct monitoring, perform remedial work, and to comply with any other measures the department deems necessary or desirable to protect health or minimize danger to life or property.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-09. Fees deposited in operating fund.

The department, by rule, may prescribe and provide for the payment and collection of reasonable fees to issue licenses and registration certificates. The fees must be based on the anticipated cost of filing and processing the application, of taking action on the requested license or registration certificate, and of conducting an inspection program to determine compliance or noncompliance with the license or registration certificate.

Any moneys collected for permit or registration fees must be deposited in the department’s operating fund in the state treasury and must be spent subject to appropriation by the legislative assembly.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-10. Federal-state agreements.

1. The governor, on behalf of this state, may enter agreements with the federal government for discontinuance of certain responsibilities of the federal government with respect to sources of ionizing radiation and the assumption of the responsibilities by the state.
2. Any person who, on the effective date of an agreement under subsection 1, possesses a license issued by the federal government must be deemed to possess the same license issued under this chapter, and the license must expire either ninety days after receipt from the department of a notice of expiration of such license or on the date of expiration specified in the federal license, whichever is earlier.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-11. Administrative procedures and judicial review.

Any proceeding under this chapter to issue or modify rules, including emergency orders relating to control of sources of ionizing radiation; grant, suspend, revoke, or amend any license; or determine compliance with rules of the department must be conducted in accordance with chapter 28-32. If an emergency exists requiring immediate action to protect the public health and safety, the department may, without notice or hearing, issue an order reciting the existence of such emergency and requiring action necessary to meet the emergency be taken. Notwithstanding any provision of this chapter, the order must be effective immediately. A person to which the order is directed shall comply with the order immediately, but may apply to the department for a hearing. The department shall provide the hearing within ten days of the application. On the basis of such hearing, the emergency order must be continued, modified, or revoked within thirty days after such hearing.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-12. Injunction proceedings.

Whenever, in the judgment of the department, any person has engaged in or is about to engage in any acts or practices that constitute or will constitute a violation of this chapter, or any rule or order issued under this chapter, the department may initiate an action in the name of the state enjoining the acts or practices, or requesting an order directing compliance. Upon a showing by the department that the person has engaged or is about to engage in the acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-13. Prohibited uses.

It is unlawful for any person to use, manufacture, produce, transport, transfer, receive, acquire, own, or possess any source of ionizing radiation unless registered with or licensed by the department under this chapter.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-14. Impounding of materials.

In the event of an emergency, the department may impound or order the impounding of sources of ionizing radiation in the possession of any person not equipped to observe or which fails to observe the provisions of this chapter or any rules issued under this chapter.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-03-15. Penalties.

1. Any person violating this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter is subject to a civil penalty not to exceed twelve thousand five hundred dollars per day per violation, unless the penalty for the violation is otherwise specifically provided for and made exclusive in this chapter.
2. Any person willfully violating any provision of this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter is guilty of a class C felony, unless the penalty for the violation is otherwise specifically provided for and made exclusive in this chapter.
3. Any person willfully making any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter or falsifying, tampering with, or willfully rendering inaccurate any monitoring device or method required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter is guilty of a class C felony, unless the penalty for the violation is otherwise specifically provided for and made exclusive in this chapter.

Source: S.L. 2017, ch. 199, § 18, effective April 29, 2019.

23.1-04-01. Declaration of purpose.

The department of environmental quality shall administer 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.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-02. Definitions.

For purposes of this chapter, unless the context otherwise requires:

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.
2. “Department” means the department of environmental quality.
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 the solid waste or hazardous waste or any hazardous constituent of the waste 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, through act or process produces hazardous waste or 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 that:
   1. 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
   2. Is identified by the mechanisms established in this chapter, including those that exhibit extraction procedure 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 transportation from the site of generation to the site of storage, treatment, or disposal.
9. “Owner” means, in the case of an underground storage tank:
   1. In use after November 7, 1984, any person that owns or operates an underground storage tank used for the storage, use, or dispensing of regulated substances.
   2. In use before November 8, 1984, but no longer in use after that date, any person that owned or operated such a tank immediately before the discontinuation of the tank’s use.
10. “Regulated substance” means:
    1. Any substance defined in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 [42 U.S.C. 9601 et seq.], as amended, but not including any substance regulated as a hazardous waste under subtitle C of the Resource Conservation and Recovery Act [42 U.S.C. 6901 et seq.], as amended.
    2. Petroleum, including crude oil or any fraction of crude oil that is liquid at standard conditions of temperature and pressure (sixty degrees Fahrenheit [16 degrees Celsius] and fourteen and seven-tenths pounds per square inch [101.35 kilopascal] absolute).
11. “Release” means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank into ground water, surface water, or subsurface soils.
12. “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.
13. “Transportation” means the offsite movement of hazardous wastes to any intermediate site or to any site of storage, treatment, or disposal.
14. “Treatment” means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste to neutralize the waste, to recover energy or material resources from the waste, or to render the waste nonhazardous or less hazardous; safer to transport, store, or dispose of; or amenable for recovery, amenable for storage, or reduced in volume.
15. “Treatment, storage, or disposal facility” means a location at which hazardous waste is subjected to treatment, storage, or disposal, and may include a facility at which hazardous waste has been generated.
16. “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 rules adopted under this chapter include:
    1. Farm or residential tanks of one thousand one hundred gallons [4163.94 liters] or less capacity used for storing motor fuel for noncommercial purposes.
    2. Tanks used for storing heating oil for consumptive use on the premises where stored.
    3. Septic tanks.
    4. A pipeline facility, including gathering lines, regulated under:
       1. The Natural Gas Pipeline Safety Act of 1968 [Pub. L. 90-481].
       2. The Hazardous Liquid Pipeline Safety Act of 1979 [Pub. L. 96-129, 49 U.S.C. 60101 et seq.].
       3. An interstate pipeline facility regulated under state laws comparable to the provisions of law in paragraph 1 or 2.
    5. Surface impoundments, pits, ponds, or lagoons.
    6. Storm water or wastewater collection systems.
    7. Flow-through process tanks.
    8. Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations.
    9. Storage tanks situated in an underground area such as a basement, cellar, mine working, drift, shaft, or tunnel if the storage tank is situated on or above the surface of the floor.
17. “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 [Pub. L. 95-217; 22 U.S.C. 1251 et seq.], as amended, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 [Pub. L. 83-703; 42 U.S.C. 2011 et seq.], 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 [Pub. L. 95-87; 30 U.S.C. 1201 et seq.].

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-03. Powers and duties of the department.

The department shall administer and enforce this chapter. The department shall:

1. Administer the state hazardous waste management and underground storage tank programs under this chapter.
2. Survey hazardous waste generation and management practices in the state.
3. Adopt, modify, repeal, and enforce rules governing the management of hazardous waste and underground storage tanks.
4. Enter agreements with other local, state, or federal agencies regarding responsibilities for regulating hazardous wastes and underground storage tanks to promote consistency in enforcement and avoid duplication in regulation.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-04. Institutional controls, responsibility exemptions, and regulatory assurances for contaminated properties — Continuing appropriation. [Repealed]

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019; repealed by 2021, ch. 212, § 19, effective July 1, 2021.

23.1-04-05. Hazardous waste regulations.

Under chapter 28-32, the department shall adopt rules:

1. For determining whether any waste is hazardous.
2. Prescribing procedures for generators of hazardous waste.
3. 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. Prescribing procedures under which the department shall issue, renew, modify, suspend, revoke, or deny permits required by this chapter. The rules 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, the reasons for the revocation, and an opportunity for a hearing.
5. For the location, design, construction, operation, and maintenance of treatment, storage, and disposal facilities.
6. 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 public service commission and department of transportation.
7. Prescribing procedures and requirements for a manifest system.
8. Prescribing procedures and requirements for the following:
   1. Recordkeeping.
   2. Reporting.
   3. Sampling.
   4. Performing analysis.
   5. Monitoring.
9. Requiring the owner or operator of any hazardous waste treatment, storage, or disposal facility to demonstrate evidence of financial responsibility in the form and amount determined by the department to be necessary to ensure that, upon abandonment, cessation, or interruption of the operation of the facility, all appropriate measures are taken to prevent damage to human health and the environment.
10. Any other rules necessary to carry out the purposes of this chapter.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-06. Underground storage tank regulations.

Under chapter 28-32, the department shall adopt rules:

1. 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. For maintaining records of any monitoring of a leak detection system, inventory control system, or tank testing system.
3. For reporting of any releases and corrective action taken in response to a release from an underground tank.
4. For taking corrective action in response to a release from an underground storage tank.
5. For the closure of tanks to prevent releases of regulated substances into the environment.
6. 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. Establishing standards for installation of underground storage tanks.
8. Establishing standards for construction and performance of new underground storage tanks.
9. For notifying the department or designated local agency of the existence of any operational or nonoperational underground storage tank.
10. 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 [42 U.S.C. 6901 et seq.] and the federal Energy Policy Act of 2005 [Pub. L. 109-58; 42 U.S.C. 15801 et seq.] in effect on August 1, 2007.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-07. 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 under this chapter.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-08. Permits.

1. A person may not 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 obtaining a permit from the department for the facility or activity. A hazardous waste treatment, storage, or disposal facility may not be issued a permit unless the applicant demonstrates to the satisfaction of the department that a need for the facility exists and the facility can comply with all applicable requirements under this chapter.
2. Permits must contain the terms and conditions the department deems necessary.
3. Permits must be issued for a period of five years.
4. Any permit issued under this section may be revoked by the department according to the rules adopted under subsection 3 of section 23.1-04-05 at any time if the permittee fails to comply with the terms and conditions of the permit, or with applicable requirements under this chapter.
5. If a permit applicant proposes modifications of an existing facility or the department determines modifications are necessary to conform to the requirements established under this chapter, the permit must specify the time allowed to complete the modifications.
6. 1. Before the issuing of a permit the department shall:
      1. Publish 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 the permit; and
      2. Transmit in writing notice of the department’s intention to issue the 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 regarding the construction or operation of the facility.
   2. 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 subdivision a. The notice must contain the date, time, place, and subject matter of the hearing.
7. Any facility required to have a permit under this chapter is exempt from the permit requirements of chapter 23.1-08.
8. Any facility required to have a permit under this section which was in existence on July 1, 1981, or the effective date of any statutory or regulatory change in the hazardous waste management which requires the facility to have a permit, and has made an application for a permit under this section must be treated as having been issued the permit until the final administrative disposition of the application is made.

Source: S.L. 2019, ch. 216, § 2, effective April 9, 2019; 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-09. Fees — Deposit in operating fund.

The department by rule may 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.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-10. Commercial facility permits and ordinances.

1. Counties and cities may issue permits for commercial facilities pursuant to section 23.1-04-08 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.
2. In addition to the requirements for obtaining a permit under this chapter, a person may not 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 a city if the commercial facility is located or proposed to be located within the territorial zoning authority of the city. The department, in conjunction with the governing body of the county or city in which the commercial facility is located or proposed to be located, shall hold a public hearing in the manner provided in section 23.1-04-08.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-11. 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, 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.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-12. Inspections — Right of entry.

To develop or enforce any rule authorized by this chapter or enforce a 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 at which wastes or substances that 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 that 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.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-13. Monitoring, analysis, and testing — Civil penalty.

1. If the department determines, upon receipt of any information, that:
   1. 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
   2. 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 the owner or operator of the facility or site could not reasonably be expected to have actual knowledge of the presence of hazardous waste or regulated substance at the facility or site and of its potential for release, the department may issue an order requiring the most recent previous owner or operator of the facility or site which could reasonably be expected to have such actual knowledge to carry out the actions referred to in subsection 1.
3. A person that violates this section is subject to a civil penalty of five thousand dollars per day of violation.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-14. 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 emergency action necessary to protect health or the environment.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-15. Enforcement penalties and citizen participation.

1. If the department finds a person is in violation of a permit, rule, standard, or requirement of this chapter, the department may issue an order requiring the person to comply with the permit, rule, standard, or requirement, and the department may bring an action for a civil or criminal penalty, including an action for injunctive relief. An action under this chapter must be brought in the 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. A person that violates a provision of this chapter or any rule, standard, or permit condition adopted under 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. A person that knowingly violates a provision of this chapter or a rule, standard, or permit condition adopted under this chapter, or that knowingly makes a false statement or representation in 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. A person that knowingly violates a provision of this chapter in a manner that manifests extreme indifference to human life and places an individual 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. 1. A person having an interest that may be adversely affected by a violation of this chapter may commence a civil action to compel compliance with this chapter, or a rule, order, or permit issued under this chapter.
   2. Notice of the violation must be given to the department and to an alleged violator sixty days before commencement of a citizen suit brought under this subsection.
   3. A person with an interest that may be adversely affected by a violation of this chapter may intervene as a matter of right in a civil action brought by the department to require compliance with this chapter.
6. An administrative action brought under this chapter must be conducted in accordance with chapter 28-32.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019; 2019, ch. 216, § 3, effective April 29, 2019.

23.1-04-16. Applicability.

1. 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; 42 U.S.C. 6901 et seq.]:
   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.
2. If a waste disposal site for any of the wastes specified in subsection 1 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 in the site.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-04-17. Limited liability for subsequent owners of property.

1. Notwithstanding any other provision of law and except as expressly provided by federal law, a person that acquires property is not liable for any existing hazardous waste or substance on the property if:
   1. 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 any hazardous waste or substance was disposed of on, in, or at the property;
   2. 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
   3. 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 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 that has acquired real property may establish a rebuttable presumption that the person has made all appropriate inquiry if the person establishes that, immediately before or at the time of acquisition, the 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 which would otherwise be liable under this chapter, and nothing in this section affects the liability under this chapter of a person that, by any act or omission, caused or contributed to the release or threatened release of a hazardous waste or substance 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.

Source: S.L. 2017, ch. 199, § 19, effective April 29, 2019.

23.1-05-01. Southwestern low-level radioactive waste disposal compact.

The southwestern low-level radioactive waste disposal compact is entered with all jurisdictions legally joining the compact, in the form substantially as follows:

Source: S.L. 2017, ch. 199, § 20, effective April 29, 2019.

ARTICLE I - COMPACT POLICY AND FORMATION

The party states hereby find and declare all of the following:

1. The United States Congress, by enacting the Low-Level Radioactive Waste Policy Act, Public Law 96-573, as amended by the Low-Level Radioactive Waste Policy Amendments Act of 1985 [42 U.S.C. 2021b - 2021j], has encouraged the use of interstate compacts to provide for the establishment and operation of facilities for regional management of low-level radioactive waste.
2. It is the purpose of this compact to provide the means for such a cooperative effort between or among party states to protect the citizens of the states and the states’ environments.
3. It is the policy of party states to this compact to encourage the reduction of the volume of low- level radioactive waste requiring disposal within the compact region.
4. It is the policy of the party states that the protection of the health and safety of their citizens and the most ecological and economical management of low-level radioactive wastes can be accomplished through cooperation of the states by minimizing the amount of handling and transportation required to dispose of these wastes and by providing facilities that serve the compact region.
5. Each party state, if an agreement state pursuant to section 2021 of title 42 of the United States Code, or the nuclear regulatory commission if not an agreement state, is responsible for the primary regulation of radioactive materials within its jurisdiction.
6. “Host county” means a county, or other similar political subdivision of a party state, in which a regional disposal facility is located or being developed.
7. “Host state” means a party state in which a regional disposal facility is located or being developed. California is the host state under this compact for the first thirty years from the date the California regional disposal facility commences operations.
   1. The waste is not high-level radioactive waste, spent nuclear fuel, or byproduct material as defined in section 11e(2) of the Atomic Energy Act of 1954 [42 U.S.C. 2014(e)(2)].
   2. The waste is not uranium mining or mill tailings.
   3. The waste is not any waste for which the federal government is responsible pursuant to subdivision (b) of section 3 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 [42 U.S.C. 2021c(b)].
   4. The waste is not an alpha-emitting transuranic nuclide with a half-life greater than five years and with a concentration greater than one hundred nanocuries per gram, or plutonium-241 with a concentration greater than three thousand five hundred nanocuries per gram, or curium-242 with a concentration greater than twenty thousand nanocuries per gram.
   5. In recommending and appointing the host county member pursuant to subdivision d, the board of county commissioners and the governor shall give first consideration to recommending and appointing the members of the board of county commissioners in whose district the regional disposal facility is located or being developed. If the board of county commissioners of the host county does not provide a list to the governor of at least seven candidates from which to choose, the governor shall appoint a resident of the host county as the host county member.
   6. The host county member is subject to confirmation by the senate of the host state and serves at the pleasure of the governor of the host state.
      1. The activities of the commission and commission staff.
      2. At the discretion of the host state, a third-party liability fund to provide compensation for injury to persons or property during the operational, closure, stabilization, and postclosure and institutional control periods of the regional disposal facility. This paragraph does not limit the responsibility or liability of the operator, who shall comply with any federal or host state statutes or regulations regarding third-party liability claims.
      3. A local government reimbursement fund, for the purpose of reimbursing the local governmental entity or entities hosting the regional disposal facility for any costs or increased burdens on the local governmental entity for services, including, general fund expenses, the improvement and maintenance of roads and bridges, fire protection, law enforcement, monitoring by local health officials, and emergency preparation and response related to the hosting of the regional disposal facility.
   7. The commission shall prepare and include in the annual report a budget showing anticipated receipts and disbursements for the subsequent fiscal year.
   8. The commission may accept any grants, equipment, supplies, materials, or services, conditional or otherwise, from the federal government or a state government. The nature, amount and condition, if any, of any donation, grant, or other resources accepted pursuant to this subdivision and the identity of the donor or grantor must be detailed in the annual report of the commission.
   9. The commission shall submit communications to the governors and to the presiding officers of the legislative assemblies of the party states regarding the activities of the commission, including an annual report to be submitted on or before January fifteenth of each year. The commission shall include in the annual report a review of, and recommendations for, low-level radioactive waste disposal methods that are alternative technologies to the shallow land burial of low-level radioactive waste.
   10. The commission shall assemble and make available to the party states, and to the public, information concerning low-level radioactive waste management needs, technologies, and problems.
   11. The commission shall keep a current inventory of all generators within the region, based upon information provided by the party states.
   12. The commission shall keep a current inventory of all regional disposal facilities, including information on the size, capacity, location, specific low-level radioactive wastes capable of being managed, and the projected useful life of each regional disposal facility.
   13. The commission may establish advisory committees for the purpose of advising the commission on the disposal and management of low-level radioactive waste.
   14. The commission may enter into contracts to carry out its duties and authority, subject to projected resources. No contract made by the commission may bind a party state.
   15. The commission shall prepare contingency plans, with the cooperation and approval of the host state, for the disposal and management of low-level radioactive waste in the event that any regional disposal facility should be closed.
   16. The commission may sue and be sued and, when authorized by a majority vote of the members, may seek to intervene in an administrative or judicial proceeding related to this compact.
   17. The commission must be managed by an appropriate staff, including an executive director. Notwithstanding any other provision of law, the commission may hire or retain, or both, legal counsel.
   18. The commission may, subject to applicable federal and state laws, recommend to the appropriate host state authority suitable land and rail transportation routes for low-level radioactive waste carriers.
   19. The commission may enter into an agreement to import low-level radioactive waste into the region only if both of the following requirements are met:
       1. The commission approves the importation agreement by a two-thirds vote of the commission.
       2. The commission and the host state assess the affected regional disposal facilities’ capability to handle imported low-level radioactive wastes and any relevant environmental or economic factors, as defined by the host state’s appropriate regulatory authorities.
   20. The commission may, upon petition, allow an individual generator, a group of generators, or the host state of the compact, to export low-level radioactive wastes to a low-level radioactive waste disposal facility located outside the region. The commission may approve the petition only by a two-thirds vote of the commission. The permission to export low-level radioactive wastes is effective for that period of time and for the amount of low-level radioactive waste, and subject to any other term or condition, which may be determined by the commission.
   21. The commission may approve, only by a two-thirds vote of the commission, the exportation outside the region of material, which otherwise meets the criteria of low-level radioactive waste, if the sole purpose of the exportation is to process the material for recycling.
   22. The commission shall, not later than ten years before the closure of the initial or subsequent regional disposal facility, prepare a plan for the establishment of the next regional disposal facility.
       1. Ensure the safe disposal of low-level radioactive waste and long-term care of the regional disposal facility.
       2. Pay for the cost of inspection, enforcement, and surveillance activities at the regional disposal facility.
       3. Assure that charges are assessed without discrimination as to the party state of origin.

ARTICLE II- DEFINITIONS

As used in this compact, unless the context clearly indicates otherwise, the following definitions apply:

1. “Commission” means the southwestern low-level radioactive waste commission established in Article III of this compact.

2. “Compact region” or “region” means the combined geographical area within the boundaries of the party states.

3. “Disposal” means the permanent isolation of low-level radioactive waste pursuant to requirements established by the nuclear regulatory commission and the environmental protection agency under applicable laws, or by a party state if the state hosts a disposal facility.

4. “Generate”, when used in relation to low-level radioactive waste, means to produce low-level radioactive waste.

5. “Generator” means a person whose activity, excluding the management of low-level radioactive waste, results in the production of low-level radioactive waste.

8 “Institutional control period” means that period of time in which the facility license is transferred to the disposal site owner in compliance with the appropriate regulations for long- term observation and maintenance following the postclosure period.

9. “Low-level radioactive waste” means regulated radioactive material that meets all of the following requirements:

10. “Major generator state” means a party state that generates ten percent of the total amount of low-level radioactive waste produced within the compact region and disposed of at the regional disposal facility. If no party state other than California generates at least ten percent of the total amount, “major generator state” means the party state that is second to California in the amount of waste produced within the compact region and disposed of at the regional disposal facility.

11. “Management” means collection, consolidation, storage, packaging, or treatment.

12. “Operator” means a person who operates a regional disposal facility.

13. “Party state” means any state that has become a party in accordance with Article VII of this compact.

14. “Person” means an individual, corporation, partnership, or other legal entity, whether public or private.

15. “Postclosure period” means that period of time after completion of closure of a disposal facility during which the licensee observes, monitors, and carries out necessary maintenance and repairs at the disposal facility to assure that the disposal facility will remain stable and will not need ongoing active maintenance. This period ends with the beginning of the institutional control period.

16. “Regional disposal facility” means a nonfederal low-level radioactive waste disposal facility established and operated under this compact.

17. “Site closure and stabilization” means the activities of the disposal facility operator taken at the end of the disposal facility’s operating life to assure the continued protection of the public from any residual radioactive or other potential hazards present at the disposal facility.

18. “Transporter” means a person who transports low-level radioactive waste.

19. “Uranium mine and mill tailings” means waste resulting from mining and processing of ores containing uranium.

ARTICLE III- THE COMMISSION

1. There is hereby established the southwestern low-level radioactive waste commission.

a. The commission consists of one voting member from each party state to be appointed by the governor, confirmed by the senate of that party state, and to serve at the pleasure of the governor of each party state, and one voting member from the host county. The appointing authority of each party state shall notify the commission in writing of the identity of the member and of any alternates. An alternate may act in the member’s absence.

b. The host state shall also appoint that number of additional voting members of the commission which is necessary for the host state’s members to compose at least fifty-one percent of the membership on the commission. The host state’s additional members must be appointed by the host state governor and confirmed by the host state senate.

If there is more than one host state, only the state in which is located the regional disposal facility actively accepting low-level radioactive waste pursuant to this compact may appoint these additional members.

c. If the host county has not been selected at the time the commission is appointed, the governor of the host state shall appoint an interim local government member, who must be an elected representative of a local government. After a host county is selected, the interim local government member shall resign and the governor shall appoint the host county member pursuant to subdivision d.

d. The governor shall appoint the host county member from a list of at least seven candidates compiled by the board of county commissioners of the host county.

2. The commission is a legal entity separate and distinct from the party states and is liable for its actions. Members of the commission are not personally liable for actions taken in their official capacity. The liabilities of the commission are not to be deemed liabilities of the party states.

3. The commission shall conduct its business affairs pursuant to the laws of the host state and disputes arising out of commission action must be governed by the laws of the host state. The commission must be located in the capital city of the host state in which the regional disposal facility is located.

4. The commission’s records are subject to the host state’s public records law, and the meetings of the commission must be open and public in accordance with the host state’s open meeting law.

5. The commission members are public officials of the appointing state and are subject to the conflict of interest laws, as well as any other law, of the appointing state. The commission members must be compensated according to the appointing state’s law.

6. Each commission member is entitled to one vote. A majority of the commission constitutes a quorum. Unless otherwise provided in this capacity, a majority of the total number of votes on the commission is necessary for the commission to take any action.

7. The commission has all of the following duties and authority:

a. The commission shall do, pursuant to the authority granted by this compact, whatever is reasonably necessary to ensure that low-level radioactive wastes are safely disposed of and managed within the region.

b. The commission shall meet at least once a year and otherwise as business requires.

c. The commission shall establish a compact surcharge to be imposed upon party state generators. The surcharge must be based upon the cubic feet of low-level radioactive waste and the radioactivity of the low-level radioactive waste and must be collected by the operator of the disposal facility.

The host state shall set, and the commission shall impose, the surcharge after congressional approval of the compact. The amount of the surcharge must be sufficient to establish and maintain a reasonable level of funds for all of the following purposes:

d. The surcharges imposed by the commission for purposes of paragraphs 2 and 3 of subdivision c and surcharges pursuant to subdivision c of subsection 5 of Article IV must be transmitted on a monthly basis to the host state for distribution to the proper accounts.

e. The commission shall establish a fiscal year that conforms to the fiscal years of the party states to the extent possible.

f. The commission shall keep an accurate account of all receipts and disbursements. An annual audit of the books of the commission must be conducted by an independent certified public accountant, and the audit report must be made a part of the annual report of the commission.

However, the host state is entitled to receive, for the uses specified in subparagraph E of paragraph 2 of subsection d of section 2021e of title 42 of the United States Code, any payments paid from the special escrow account for which the secretary of energy is trustee pursuant to subparagraph A of paragraph of subsection d of section 2021e of title 42 of the United States Code.

ARTICLE IV- RIGHTS, RESPONSIBILITIES, AND OBLIGATIONS OF PARTY STATES

1. There must be regional disposal facilities sufficient to dispose of the low-level radioactive waste generated within the region.

2. Low-level radioactive waste generated within the region must be disposed of at regional disposal facilities and each party state must have access to any regional disposal facility without discrimination.

3. a. Upon the effective date of this compact, California must serve as the host state and must comply with the requirements of subsection 5 for at least thirty years from the date the regional disposal facility begins to accept low-level radioactive waste for disposal. The extension of the obligation and duration is at the option of California.

If California does not extend this obligation, the party state, other than California, which is the largest major generator state, must then serve as the host state for the second regional disposal facility.

The obligation of a host state which hosts the second regional disposal facility must also run for thirty years from the date the second regional disposal facility begins operations.

b. The host state may close its regional disposal facility when necessary for public health or safety.

4. The party states of this compact cannot be members of another regional low-level radioactive waste compact entered into pursuant to the Low-Level Radioactive Waste Policy Act, as amended by the Low-Level Radioactive Waste Policy Amendments Act of 1985 [42 U.S.C. 2021b - 2021j].

5. A host state shall do all of the following:

a. Cause a regional disposal facility to be developed on a timely basis.

b. Ensure by law, consistent with any applicable federal laws, the protection and preservation of public health and safety in the siting, design, development, licensing, regulation, operation, closure, decommissioning, and long-term care of the regional disposal facilities within the state.

c. Ensure that charges for disposal of low-level radioactive waste at the regional disposal facility are reasonably sufficient to do all of the following:

d. Submit an annual report to the commission on the status of the regional disposal facility including projections of the facility’s anticipated future capacity.

e. The host state and the operator shall notify the commission immediately upon the occurrence of any event which could cause a possible temporary or permanent closure of a regional disposal facility.

6. Each party state is subject to the following duties and authority:

a. To the extent authorized by federal law, each party state shall develop and enforce procedures requiring low-level radioactive waste shipments originating within its borders and destined for a regional disposal facility to conform to packaging and transportation requirements and regulations. These procedures must include all of the following requirements:

(1) Periodic inspections of packaging and shipping practices.

(2) Periodic inspections of low-level radioactive waste containers while in the custody of transporters.

(3) Appropriate enforcement actions with respect to violations.

b. A party state may impose a surcharge on the low-level radioactive waste generators within the state to pay for activities required by subdivision a.

c. To the extent authorized by federal law, each party state shall, after receiving notification from a host state that a person in a party state has violated packaging, shipping, or transportation requirements or regulations, take appropriate actions to ensure that these violations do not continue. Appropriate actions include requiring that a bond be posted by the violator to pay the cost of repackaging at the regional disposal facility and prohibiting future shipments to the regional disposal facility.

d. Each party state shall maintain a registry of all generators within the state that may have low-level radioactive waste to be disposed of at a regional disposal facility, including the amount of low-level radioactive waste and the class of low-level radioactive waste generated by each generator.

e. Each party state shall encourage generators within its borders to minimize the volume of low-level radioactive waste requiring disposal.

f. Each party state may rely on the good-faith performance of the other party states to perform those acts that are required by this compact to provide regional disposal facilities, including the use of the regional disposal facilities in a manner consistent with this compact.

g. Each party state shall provide the commission with any data and information necessary for the implementation of the commission’s responsibilities, including taking those actions necessary to obtain this data or information.

h. Each party state shall agree that only low-level radioactive waste generated within the jurisdiction of the party states may be disposed of in the regional disposal facility, except as provided in subdivision s of subsection 7 of Article III.

i. Each party state shall agree that if there is any injury to persons or property resulting from the operation of a regional disposal facility, the damages resulting from the injury may be paid from the third-party liability fund pursuant to paragraph 2 of subdivision c of subsection 7 of Article III, only to the extent that the damages exceed the limits of liability insurance carried by the operator. No party state, by joining this compact, assumes any liability resulting from the siting, operation, maintenance, long-term care, or other activity relating to a regional facility, and no party state is liable for any harm or damage resulting from a regional facility not located within the state.

ARTICLE V- APPROVAL OF REGIONAL FACILITIES

A regional disposal facility must be approved by the host state in accordance with its laws. This compact does not confer any authority on the commission regarding the siting, design, development, licensing, or other regulation, or the operation, closure, decommissioning, or long-term care of, any regional disposal facility within a party state.

ARTICLE VI- PROHIBITED ACTS AND PENALTIES

1. No person may dispose of low-level radioactive waste within the region unless the disposal is at a regional disposal facility, except as otherwise provided in subdivisions t and u of subsection 7 of Article III.

2. No person may dispose of or manage any low-level radioactive waste within the region unless the low-level radioactive waste was generated within the region, except as provided in subdivisions s, t, and u of subsection 7 of Article III.

3. Violations of this section must be reported to the appropriate law enforcement agency within the party state’s jurisdiction.

4. Violations of this section may result in prohibiting the violator from disposing of low-level radioactive waste in the regional disposal facility, as determined by the commission or the host state.

ARTICLE VII- ELIGIBILITY, ENTRY INTO EFFECT, CONGRESSIONAL CONSENT, WITHDRAWAL, EXCLUSION

1. Arizona, North Dakota, South Dakota, and California are eligible to become parties to this compact. Any other state may be made eligible by a majority vote of the commission and ratification by the legislative assemblies of all of the party states by statute, and upon compliance with those terms and conditions for eligibility which the host state may establish. The host state may establish all terms and conditions for the entry of any state, other than the states named in this subsection, as a member of this compact.

2. Upon compliance with the other provisions of this compact, an eligible state may become a party state by legislative enactment of this compact or by executive order of the governor of the state adopting this compact. A state becoming a party state by executive order ceases to be a party state upon adjournment of the first general session of its legislative assembly convened after the executive order is issued, unless before the adjournment the legislative assembly enacts this compact.

3. A party state, other than the host state, may withdraw from the compact by repealing the enactment of this compact, but this withdrawal does not become effective until two years after the effective date of the repealing legislation. If a party state which is a major generator of low-level radioactive waste voluntarily withdraws from the compact pursuant to this subsection, that state shall make arrangements for the disposal of the other party states’ low-level radioactive waste for a time period equal the period of time it was a member of this compact.

If the host state withdraws from the compact, the withdrawal does not become effective until five years after the effective date of the repealing legislation.

4. A party state may be excluded from this compact by a two-thirds vote of the commission members, acting in a meeting, if the state to be excluded has failed to carry out any obligations required by this compact.

5. This compact takes effect upon the enactment by statute by the legislatures of California and at least one other eligible state and upon the consent of Congress and remains in effect until otherwise provided by federal law. This compact is subject to review by Congress and the withdrawal of the consent of Congress every five years after its effective date, pursuant to federal law.

ARTICLE VIII- CONSTRUCTION AND SEVERABILITY

1. This compact must be broadly construed to carry out the purposes of the compact, but the sovereign powers of a party state may not be infringed unnecessarily.

2. This compact does not affect any judicial proceeding pending on the effective date of this compact.

3. If any provision of this compact or the application thereof to any person or circumstances is held invalid, that invalidity does not affect other provisions or applications of the compact which can be given effect without the invalid provision or application, and to this end the provisions of this compact are severable.

4. Nothing in this compact diminishes or otherwise impairs the jurisdiction, authority, or discretion of either of the following:

a. The nuclear regulatory commission pursuant to the Atomic Energy Act of 1954, as amended [42 U.S.C. 2011 et seq.].

b. An agreement state under section 274 of the Atomic Energy Act of 1954, as amended [42 U.S.C. 2021].

5. Nothing in this compact confers any new authority on the states or commission to do any of the following:

a. Regulate the packaging or transportation of low-level radioactive waste in a manner inconsistent with the regulations of the nuclear regulatory commission or the United States department of transportation.

b. Regulate health, safety, or environmental hazards from source, byproduct, or special nuclear material.

c. Inspect the activities of licensees of the agreement states or of the nuclear regulatory commission.

23.1-06-01. Definitions.

For purposes of this chapter:

1. “Air contaminant” means any solid, liquid, gas, or odorous substance, or any combination of solid, liquid, gas, or odorous substance.
2. “Air pollution” means the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as may be injurious to human health, welfare, or property, animal or plant life, or which unreasonably interferes with the enjoyment of life or property.
3. “Air quality standard” means an established concentration, exposure time, or frequency of occurrence of a contaminant or multiple contaminants in the ambient air which may not be exceeded.
4. “Ambient air” means the surrounding outside air.
5. “Asbestos abatement” means any demolition, renovation, salvage, repair, or construction activity which involves the repair, enclosure, encapsulation, removal, handling, or disposal of more than three square feet [0.28 square meter] or three linear feet [0.91 meter] of friable asbestos material. Asbestos abatement also means any inspections, preparation of management plans, and abatement project design for both friable and nonfriable asbestos material.
6. “Asbestos contractor” means any person that contracts to perform asbestos abatement for another.
7. “Asbestos worker” means any individual engaged in the abatement of more than three square feet [0.28 square meter] or three linear feet [0.91 meter] of friable asbestos material, except for individuals engaged in abatement at their private residence.
8. “Department” means the department of environmental quality.
9. “Emission” means a release of air contaminants into the ambient air.
10. “Emission standard” means a limitation on the release of any air contaminant into the ambient air.
11. “Friable asbestos material” means any material containing more than one percent asbestos that hand pressure or mechanical forces expected to act on the material can crumble, pulverize, or reduce to powder when dry.
12. “Indirect air contaminant source” means any facility, building, structure, or installation, or any combination that can reasonably be expected to cause or induce emissions of air contaminants.
13. “Lead-based paint” means paint or other surface coatings that contain lead equal to or in excess of one milligram per square centimeter or more than one-half percent by weight.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-02. Declaration of public policy and legislative intent.

It is the public policy of this state and the legislative intent of this chapter to achieve and maintain the best air quality possible, consistent with the best available control technology, to protect human health, welfare, and property, to prevent injury to plant and animal life, to promote the economic and social development of this state, to foster the comfort and convenience of the people, and to facilitate the enjoyment of the natural attractions of this state.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-03. Environmental review advisory council — Public hearing and rule recommendations. [Repealed]

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019; repealed by 2019, ch. 216, § 5, effective April 8, 2019.

23.1-06-04. Power and duties of the department.

1. The department shall develop and coordinate a statewide program of air pollution control. To accomplish this, the department shall:
   1. Encourage the voluntary cooperation of persons to achieve the purposes of this chapter.
   2. Determine by scientifically oriented field studies and sampling the degree of air pollution in the state and the several parts thereof.
   3. Encourage and conduct studies, investigations, and research relating to air pollution and its causes, effects, prevention, abatement, and control.
   4. Advise, consult, and cooperate with other public agencies and with affected groups and industries.
   5. Issue orders necessary to effectuate the purposes of this chapter and enforce the orders by all appropriate administrative and judicial procedures.
   6. Provide rules relating to the construction of any new direct or indirect air contaminant source or modification of any existing direct or indirect air contaminant source which the department determines will prevent the attainment or maintenance of any ambient air quality standard, and require that before commencing construction or modification of any such source, the owner or operator shall submit the information necessary to permit the department to make this determination.
   7. Establish ambient air quality standards for the state which may vary according to appropriate areas.
   8. Formulate and adopt emission control requirements for the prevention, abatement, and control of air pollution in this state including achievement of ambient air quality standards.
   9. Hold hearings relating to the administration of this chapter, and compel the attendance of witnesses and the production of evidence.
   10. Require the owner or operator of a regulated air contaminant source to establish and maintain records; make reports; install, use, and maintain monitoring equipment or methods; sample emissions in accordance with those methods at designated locations and intervals, and using designated procedures; and provide other information as may be required.
   11. Provide by rules a procedure for handling applications for a variance for any person that owns or is in control of any plant, establishment, process, or equipment. The granting of a variance is not a right of the applicant but must be in the discretion of the department.
   12. Provide by rules any procedures necessary and appropriate to develop, implement, and enforce any air pollution prevention and control program established by the federal Clean Air Act [42 U.S.C. 7401 et seq.], as amended, the authorities and responsibilities of which are delegatable to the state by the United States environmental protection agency. The rules may include enforceable ambient standards, emission limitations, and other control measures, means, techniques, or economic incentives, including fees, marketable permits, and auctions of emissions rights, as provided by the Act. The department shall develop and implement the federal programs if the department determines that doing so benefits the state.
   13. Provide by rules a program for implementing lead-based paint remediation training, certification, and performance requirements in accordance with title 40, Code of Federal Regulations, part 745, sections 220, 223, 225, 226, 227, and 233.
2. After consultation with the advisory council, the department may adopt, amend, and repeal rules under this chapter.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-05. Licensing of asbestos and lead-based paint contractors and certification of asbestos and lead-based paint workers.

1. The department shall administer and enforce a licensing program for asbestos contractors and lead-based paint contractors and a certification program for asbestos workers and lead-based paint workers. To do so, the department shall:
   1. Require training of, and to examine, asbestos workers and lead-based paint workers.
   2. Establish standards and procedures for the licensing of contractors, and the certification of asbestos workers engaging in the abatement of friable asbestos materials or nonfriable asbestos materials that become friable during abatement, and establish performance standards for asbestos abatement. The performance standards will be as stringent as those standards adopted by the United States environmental protection agency pursuant to section 112 of the federal Clean Air Act [42 U.S.C. 7401 et seq.], as amended.
   3. Establish standards and procedures for licensing contractors and certifying lead-based paint workers engaging in the abatement of lead-based paint, and establish performance standards for lead-based paint abatement in accordance with title 40, Code of Federal Regulations, part 745, sections 220, 223, 225, 226, 227, and 233.
   4. Issue certificates to all applicants who satisfy the requirements for certification under this section and any rules under this section, renew certificates, and suspend or revoke certificates for cause after notice and opportunity for hearing.
   5. Establish an annual fee and renewal fees for licensing asbestos contractors and lead-based paint contractors and certifying asbestos and lead-based paint workers, and establish examination fees for asbestos and lead-based paint workers under section 23.1-06-10. The annual, renewal, and examination fees for lead-based contractors and workers may not exceed those charged to asbestos contractors and workers.
   6. Establish indoor environmental nonoccupational air quality standards for asbestos.
   7. Adopt and enforce rules as necessary for the implementation of this section.
2. For nonpublic employees performing asbestos abatement in facilities or on facility components owned or leased by their employer, only the provisions of rules adopted in accordance with the federal Asbestos Hazard Emergency Response Act of 1986 [Pub. L. 99-519; 100 Stat. 2970; 15 U.S.C. 2641 et seq.], as amended, or the federal Clean Air Act [Pub. L. 95-95; 91 Stat. 685; 42 U.S.C. 7401 et seq.], as amended, apply to this section. This does not include ownership that was acquired solely to effect a demolition or renovation.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-06. Sulfur dioxide ambient air quality standards more strict than federal standards prohibited.

The department may not adopt ambient air quality rules or standards for sulfur dioxide that affect coal conversion facilities or petroleum refineries that are more strict than federal rules or standards under the federal Clean Air Act [42 U.S.C. 7401 et seq.], nor may the department adopt ambient air quality rules or standards for sulfur dioxide that affect these facilities and refineries when there are no corresponding federal rules or standards. Any ambient air quality standards that have been adopted by the department for sulfur dioxide that are more strict than federal rules or standards under the federal Clean Air Act, or for which there are no corresponding federal rules or standards, are void as to coal conversion facilities and petroleum refineries. However, the department may adopt rules for dealing with exposures of less than one hour to sulfur dioxide emissions on a source-by-source basis pursuant to any regulatory program for dealing with short-term exposures to sulfur dioxide that may be established under the federal Clean Air Act. Any intervention levels or standards set forth in the rules may not be more strict than federal levels or standards recommended or adopted under the federal program. In adopting the rules, the department shall follow all other provisions of state law governing the department’s adoption of ambient air quality rules when there are no mandatory corresponding federal rules or standards.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-07. Requirements for adoption of air quality rules more strict than federal standards.

1. Notwithstanding any other provisions of this title, the department may not adopt air quality rules or standards affecting coal conversion and associated facilities, coal-fueled electric generating units, petroleum refineries, or oil and gas production and processing facilities which are more strict than federal rules or standards under the federal Clean Air Act [42 U.S.C. 7401 et seq.], nor may the department adopt air quality rules or standards affecting such facilities when there are no corresponding federal rules or standards, unless the more strict or additional rules or standards are based on a risk assessment that demonstrates a substantial probability of significant impacts to public health or property, a cost-benefit analysis that affirmatively demonstrates that the benefits of the more stringent or additional state rules and standards will exceed the anticipated costs, and the independent peer reviews required by this section.
2. The department shall hold a hearing on any rules or standards proposed for adoption under this section on not less than ninety days’ notice. The notice of hearing must specify all studies, opinions, and data that have been relied upon by the department and must state that the studies, risk assessment, and cost-benefit analysis that support the proposed rules or standards are available at the department for inspection and copying. If the department intends to rely upon any studies, opinions, risk assessments, cost-benefit analyses, or other information not available from the department when it gave its notice of hearing, the department shall give a new notice of hearing not less than ninety days before the hearing which clearly identifies the additional or amended studies, analyses, opinions, data, or information upon which the department intends to rely and conduct an additional hearing if the first hearing has already been held.
3. In this section:
   1. “Cost-benefit analysis” means both the analysis and the written document that contains:
      1. A description and comparison of the benefits and costs of the rule and of the reasonable alternatives to the rule. The analysis must include a quantification or numerical estimate of the quantifiable benefits and costs. The quantification or numerical estimate must use comparable assumptions, including time periods, specify the ranges of predictions, and explain the margins of error involved in the quantification methods and estimates being used. The costs that must be considered include the social, environmental, and economic costs that are expected to result directly or indirectly from implementation or compliance with the proposed rule.
      2. A reasonable determination whether as a whole the benefits of the rule justify the costs of the rule and that the rule will achieve the rulemaking objectives in a more cost-effective manner than other reasonable alternatives, including the alternative of no government action. In evaluating and comparing the costs and benefits, the department may not rely on cost, benefit, or risk assessment information that is not accompanied by data, analysis, or supporting materials that would enable the department and other persons interested in the rulemaking to assess the accuracy, reliability, and uncertainty factors applicable to the information.
   2. “Risk assessment” means both the process used by the department to identify and quantify the degree of toxicity, exposure, or other risk posed for the exposed individuals, populations, or resources, and the written document containing an explanation of how the assessment process has been applied to an individual substance, activity, or condition. The risk assessment must include a discussion that characterizes the risks being assessed. The risk characterization must include the following elements:
      1. A description of the exposure scenarios used, the natural resources or subpopulations being exposed, and the likelihood of these exposure scenarios expressed in terms of probability.
      2. A hazard identification that demonstrates whether exposure to the substance, activity, or condition identified is causally linked to an adverse effect.
      3. The major sources of uncertainties in the hazard identification, dose-response, and exposure assessment portions of the risk assessment.
      4. When a risk assessment involves a choice of any significant assumption, inference, or model, the department, in preparing the risk assessment, shall:
         1. Rely only upon environmental protection agency-approved air dispersion models.
         2. Identify the assumptions, inferences, and models that materially affect the outcome.
         3. Explain the basis for any choices.
         4. Identify any policy decisions or assumptions.
         5. Indicate the extent to which any model has been validated by, or conflicts with, empirical data.
         6. Describe the impact of alternative choices of assumptions, inferences, or mathematical models.
      5. The range and distribution of exposures and risks derived from the risk assessment.
   3. The risk assessment and cost-benefit analysis performed by the department must be independently peer reviewed by qualified experts selected by the environmental review advisory council.
4. This section applies to any petition submitted to the department under section 23.1-01-04 which identifies air quality rules or standards affecting coal conversion facilities, coal-fueled electric generating units, or petroleum refineries that are more strict than federal rules or standards under the federal Clean Air Act [42 U.S.C. 7401 et seq.] or for which there are no corresponding federal rules or standards, regardless of whether the department has previously adopted the more strict or additional rules or standards pursuant to section 23.1-01-04. This section also applies to any petitions filed under section 23.1-01-04 affecting coal conversion facilities, coal-fueled electric generating units, or petroleum refineries that are pending on the effective date of this section for which new rules or standards have not been adopted, and the department shall have a reasonable amount of additional time to comply with the more stringent requirements of this section. To the extent section 23.1-01-04.1 conflicts with this section, the provisions of this section govern. This section does not apply to existing rules that set air quality standards for odor, hydrogen sulfide, visible and fugitive emissions, or emission standards for particulate matter and sulfur dioxide, but does apply to new rules governing those standards.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019; 2021, ch. 210, § 1, effective March 24, 2021.

23.1-06-08. Classification and reporting of air pollution sources.

1. After consultation with the environmental review advisory council the department, by rule, may classify air contaminant sources according to levels and types of emissions and other criteria that relate to air pollution, and may require reporting for any class. Classifications made under this subsection may apply to the state as a whole or to any designated area of the state, and must be made with special reference to effects on health, economic, and social factors and physical effects on property.
2. A person operating or responsible for the operation of air contaminant sources of any class for which reporting is required shall make reports containing information the department deems relevant to air pollution.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-09. Permits or registration.

1. A person may not construct, install, modify, use, or operate an air contaminant source designated by regulation, capable of causing or contributing to air pollution, either directly or indirectly, without a permit from the department or in violation of any conditions imposed by the permit.
2. The department shall provide for the issuance, suspension, revocation, and renewal of permits that it requires under this section.
3. The department may require applications for permits to be accompanied by plans, specifications, and other information it deems necessary.
4. Possession of an approved permit or registration certificate does not relieve any person of the responsibility to comply with applicable emission limitations or with any other law or rule, and does not relieve any person from the requirement to possess a valid contractor’s license issued under chapter 43-07.
5. The department by rule may provide for registration and registration renewal of certain air contaminant sources in lieu of a permit.
6. The department may exempt by rule certain air contaminant sources from the permit or registration requirements in this section when the department makes a finding the exemption will not be contrary to section 23.1-06-02.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-10. Fees — Deposit in operating fund.

The department by rule may prescribe and provide for the payment and collection of reasonable fees for permits and registration certificates. The 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 an inspection program to determine compliance or noncompliance with the permit or registration certificate. Any moneys collected for permit or registration fees must be deposited in the department operating fund in the state treasury and must be spent subject to appropriation by the legislative assembly.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-11. Right of onsite inspection.

1. Any duly authorized officer, employee, or agent of the department may enter and inspect any property, premise, or place on or at which an air contaminant source is located or is being constructed, installed, or established at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and related rules. If requested, the owner or operator of the premises must receive a report setting forth all facts found which relate to compliance status.
2. The department may conduct tests and take samples of air contaminants, fuel, process material, and other materials that may affect emission of air contaminants from any source, and may have access to and copy any records required by department rules to be maintained, and may inspect monitoring equipment located on the premises. Upon request of the department, the person responsible for the source to be tested shall provide necessary holes in stacks or ducts and other safe and proper sampling, and testing facilities exclusive of instruments and sensing devices necessary for proper determination of the emission of air contaminants. If an authorized representative of the department, during the course of an inspection, obtains a sample of air contaminant, fuel, process material, or other material, the representative shall issue a receipt for the sample obtained to the owner or operator of, or person responsible for, the source tested.
3. To ascertain the state of compliance with this chapter and any applicable rules, a duly authorized officer, employee, or agent of the department may enter and inspect, at any reasonable time, any property, premises, or place on or at which a lead-based paint remediation activity is ongoing. If requested, the department shall provide to the owner or operator of the premises a report that sets forth all facts found which relate to compliance status.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-12. Confidentiality of records.

1. Any record, report, or information obtained under this chapter must be available to the public. However, upon a showing satisfactory to the department that disclosure to the public of a part of the record, report, or information, other than emission data, to which the department has access under this chapter, would divulge trade secrets, the department shall consider that part of the record, report, or information confidential.
2. This section may not prevent disclosure of any report, or record of information to federal, state, or local agencies when necessary for purposes of administration of any federal, state, or local air pollution control laws, or when relevant in any proceeding under this chapter.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-13. Administrative procedure and judicial review.

Any proceeding under this chapter for the issuance or modification of rules and regulations, including emergency orders relating to control of air pollution, or determining compliance with rules and regulations of the department, must be conducted in accordance with chapter 28-32. Appeals from the proceeding may be taken under chapter 28-32. When an emergency exists requiring immediate action to protect the public health and safety, the department may, without notice or hearing, issue an order reciting the existence of the emergency and requiring action be taken as necessary to meet the emergency. Notwithstanding any provision of this chapter, the order must be effective immediately, but on application to the department an interested person must be afforded a hearing before the environmental review advisory council within ten days. On the basis of the hearing, the emergency order must be continued, modified, or revoked within thirty days after the hearing. Except as provided for in this section, notice of any hearing held under this chapter must be issued at least thirty days before the date specified for the hearing.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-14. Enforcement — Penalties — Injunctions.

1. A person that willfully violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than one year, or both. If the conviction is for a violation committed after a first conviction of the person under this subsection, punishment must be a fine of not more than twenty thousand dollars per day per violation, or by imprisonment for not more than two years, or both.
2. A person that violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, with criminal negligence, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than six months, or both.
3. A person that knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, or that falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, upon conviction, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than six months, or both.
4. A person that violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, is subject to a civil penalty not to exceed ten thousand dollars per day per violation.
5. Without prior revocation of any pertinent permits, the department, in accordance with the laws of this state governing injunction or other process, may maintain an action in the name of the state against any person to enjoin a threatened or continuing violation of any provision of this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter.

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019.

23.1-06-15. Regulation of odors — Rules.

1. In areas located within a city or the area over which a city has exercised extraterritorial zoning as defined in section 40-47-01.1, a person may not discharge into the ambient air any objectionable odorous air contaminant that measures seven odor concentration units or higher outside the property boundary where the discharge is occurring. If an agricultural operation as defined by section 42-04-01 has been in operation for more than one year, as provided by section 42-04-02, and the person making the odor complaint was built or established after the agricultural operation was established, the measurement for compliance with the seven odor concentration units standard must be taken within one hundred feet [30.48 meters] of the subsequently established residence, church, school, business, or public building making the complaint rather than at the property boundary of the agricultural operation. The measurement may not be taken within five hundred feet [.15 kilometer] of the property boundary of the agricultural operation.
2. In areas located outside a city or outside the area over which a city has exercised extraterritorial zoning as defined in section 40-47-01.1, a person may not discharge into the ambient air any objectionable odorous air contaminant that causes odors that measure seven odor concentration units or higher as measured at any of the following locations:
   1. Within one hundred feet [30.48 meters] of any residence, church, school, business, or public building, or within a campground or public park. An odor measurement may not be taken at the residence of the owner or operator of the source of the odor, or at any residence, church, school, business, or public building, or within a campground or public park, that is built or established within one-half mile [.80 kilometer] of the source of the odor after the source of the odor has been built or established;
   2. At any point located beyond one-half mile [.80 kilometer] from the source of the odor, except for property owned by the owner or operator of the source of the odor, or over which the owner or operator of the source of the odor has purchased an odor easement; or
   3. If a county or township has zoned or established a setback distance for an animal feeding operation which is greater than one-half mile [.80 kilometer] under either section 11-33-02.1 or 58-03-11.1, or if the setback distance under subsection 7 is greater than one-half mile [.80 kilometer], measurements for compliance with the seven odor concentration units standard must be taken at the setback distance rather than one-half mile [.80 kilometer] from the facility under subdivision b, except for any residence, church, school, business, public building, park, or campground within the setback distance which was built or established before the animal feeding operation was established, unless the animal feeding operation has obtained an odor easement from the pre-existing facility.
3. An odor measurement may be taken only with a properly maintained scentometer, by an odor panel, or by another instrument or method approved by the department of environmental quality, and only by inspectors certified by the department who have successfully completed a department-sponsored odor certification course and demonstrated the ability to distinguish various odor samples and concentrations. If a certified inspector measures a violation of this section, the department may send a certified letter of apparent noncompliance to the person causing the apparent violation and may negotiate with the owner or operator for the establishment of an odor management plan and best management practices to address the apparent violation. The department shall give the owner or operator at least fifteen days to implement the odor management plan. If the odor problem persists, the department may proceed with an enforcement action provided at least two certified inspectors at the same time each measure a violation and then confirm the violation by a second odor measurement taken by each certified inspector, at least fifteen minutes, but no more than two hours, after the first measurement.
4. A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land in accordance with a nutrient management plan approved by the department of environmental quality. A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land owned or leased by that person in accordance with rules adopted by the department. An owner or operator of a lagoon or waste storage pond permitted by the department is exempt from this section in the spring from the time when the cover of the permitted lagoon or pond begins to melt until fourteen days after all the ice cover on the lagoon or pond has completely melted. Notwithstanding these exemptions, all persons shall manage their property and systems to minimize the impact of odors on their neighbors.
5. This section does not apply to chemical compounds that can be individually measured by instruments, other than a scentometer, that have been designed and proven to measure the individual chemical or chemical compound, such as hydrogen sulfide, to a reasonable degree of scientific certainty, and for which the department of environmental quality has established a specific limitation by rule.
6. For purposes of this section:
   1. “Business” means a commercial building used primarily to carry on a for-profit or nonprofit business which is not residential and not used primarily to manufacture or produce raw materials, products, or agricultural commodities;
   2. “Campground” means a public or private area of land used exclusively for camping and open to the public for a fee on a regular or seasonal basis;
   3. “Church” means a building owned by a religious organization and used primarily for religious purposes;
   4. “Park” means a park established by the federal government, the state, or a political subdivision of the state in the manner prescribed by law;
   5. “Public building” means a building owned by a county, city, township, school district, park district, or other unit of local government; the state; or an agency, industry, institution, board, or department of the state; and
   6. “School” means a public school or nonprofit, private school approved by the superintendent of public instruction .
7. 1. In a county or township that does not regulate the nature, scope, or location of an animal feeding operation under section 11-33-02.1 or section 58-03-11.1, the department shall require that any new animal feeding operation permitted under chapter 61-28 be set back from any existing residence, church, school, business, public building, park, or campground.
      1. If there are fewer than three hundred animal units, there is no minimum setback requirement.
      2. If there are at least three hundred animal units but no more than one thousand animal units, the setback for any animal operation is one-half mile [.80 kilometer].
      3. If there are at least one thousand one animal units but no more than two thousand animal units, the setback for a hog operation is three-fourths mile [1.20 kilometers], and the setback for any other animal operation is one-half mile [.80 kilometer].
      4. If there are at least two thousand one animal units but no more than five thousand animal units, the setback for a hog operation is one mile [1.60 kilometers], and the setback for any other animal operation is three-fourths mile [1.20 kilometers].
      5. If there are five thousand one or more animal units, the setback for a hog operation is one and one-half miles [2.40 kilometers], and the setback for any other animal operation is one mile [1.60 kilometers].
   2. The setbacks set forth in subdivision a do not apply if the owner or operator applying for the permit obtains an odor easement from the pre-existing use that is closer.
   3. For purposes of this section:
      1. One mature dairy cow, whether milking or dry, equals 1.33 animal units;
      2. One dairy cow, heifer or bull, other than an animal described in paragraph 1 equals 1.0 animal unit;
      3. One weaned beef animal, whether a calf, heifer, steer, or bull, equals 0.75 animal unit;
      4. One cow-calf pair equals 1.0 animal unit;
      5. One swine weighing fifty-five pounds [24.948 kilograms] or more equals 0.4 animal unit;
      6. One weaned swine weighing less than fifty-five pounds [24.948 kilograms] equals 0.1 animal unit;
      7. One horse equals 2.0 animal units;
      8. One sheep or weaned lamb equals 0.1 animal unit;
      9. One turkey equals 0.0182 animal unit;
      10. One chicken equals 0.01 animal unit;
      11. Any weaned livestock not listed in paragraphs 1 through 11 equals 1.0 animal unit per each one thousand pounds [453.59 kilograms], whether single or combined animal weight.
   4. In a county or township that regulates the nature, scope, or location of an animal feeding operation under section 11-33-02.1 or 58-03-11.1, an applicant for an animal feeding operation permit shall submit to the department with the permit application the zoning determination made by the county or township under subsection 9 of section 11-33-02.1 or subsection 9 of section 58-03-11.1, unless the animal feeding operation is in existence by January 1, 2019, and there is no change in animals or animal units which would result in an increase in the setbacks provided for in this section. The department may not impose additional odor setback requirements.
   5. An animal feeding operation is not subject to zoning regulations adopted by a county or township after the date an application for the animal feeding operation is submitted to the department, provided construction of the animal feeding operation commences within three years from the date the application is submitted. Unless there is a change to the location of the proposed animal feeding operation, this exemption remains in effect if the department requires the applicant to submit a revised application.
8. A permitted animal feeding operation may expand its permitted capacity by twenty-five percent on one occasion without triggering a higher setback distance.
9. A county or township may not regulate or impose restrictions or requirements on animal feeding operations or other agricultural operations except as permitted under sections 11-33-02.1 and 58-03-11.1.

One duck or goose equals 0.2 animal unit; and

Source: S.L. 2017, ch. 199, § 21, effective April 29, 2019; 2019, ch. 218, § 4, effective August 1, 2019.

23.1-06-16. Implementation of federal regional haze program requirements.

1. Consistent with the federal Clean Air Act [42 U.S.C. 7401 et seq.] and the regulations adopted under the Clean Air Act, the department shall develop and implement a state regional haze plan in accordance with this section.
2. The state regional haze plan must include an analysis of the natural and international causes of visibility impairment.
3. In developing a periodic comprehensive revision of the state implementation plan, the department shall consider whether additional measures are necessary to make reasonable progress toward meeting the national goal of visibility improvement, as required by the federal Clean Air Act [42 U.S.C. 7401 et seq.] and further defined by the United States environmental protection agency to be natural visibility conditions by 2064. The department may not require controls the department has determined serve only to increase total costs with little corresponding visibility benefit.
4. If the environmental protection agency disapproves the state regional haze plan, the department may develop and submit as expeditiously as possible a revised plan to address the reasons for the disapproval in accordance with the requirements of this section.
5. Any new control measures mandated by the state regional haze plan are effective only upon final approval by the environmental protection agency.
6. If federal laws, a federal court, or a final federal agency action renders any control measures included in the state plan unenforceable by the environmental protection agency, the requirement to implement the measures may not be enforced under state law to the same extent the measures are unenforceable under federal law.

Source: S.L. 2021, ch. 211, § 1, effective March 24, 2021.

23.1-07-01. Statement of policy.

It is the policy of the state of North Dakota to protect the public health and welfare of the people of the state and the state’s water resources by classifying all public water supply and wastewater disposal systems in the state and by requiring the examination of operators and the certification of their competency to supervise the operations of such facilities.

Source: S.L. 2017, ch. 199, § 22, effective April 29, 2019.

23.1-07-02. Definitions.

For the purpose of this chapter, unless the context otherwise requires:

1. “Certificate” means a certificate of competency issued by the department stating that the operator holding the certificate meets the requirements for the specified operator grade in the certification program.
2. “Department” means the department of environmental quality.
3. “Ground water under the direct influence of surface water” means water beneath the surface of the ground with significant occurrence of insects or other macro-organisms, algae, or large-diameter pathogens such as Giardia lamblia, or significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or pH which closely correlate to climatological or surface water conditions.
4. “Operator” means the person in direct responsible charge of the operation of a water treatment plant, a water distribution system, a wastewater treatment plant, or a wastewater collection system.
5. “Population equivalent” for a wastewater collection system or treatment plant means the calculated population that would normally contribute the same amount of biochemical oxygen demand per day computed on the basis of seventeen hundredths of one pound [77.11 grams] of five-day, sixty-eight-degree Fahrenheit [20-degree Celsius] biochemical oxygen demand per capita per day.
6. “Wastewater collection system” means that portion of the wastewater disposal system in which wastewater is conveyed to a wastewater treatment plant from the premises of a contributor.
7. “Wastewater disposal system” means the system of pipes, structures, and facilities through which wastewater from a public sewer system or industry is collected and treated for final disposal. The system must serve a population equivalent of twenty-five or more persons.
8. “Wastewater treatment plant” means that portion of the wastewater disposal system used for the treatment and disposal of wastewater and the solids removed from wastewater.
9. “Water distribution system” means that portion of the water supply system in which water is conveyed from the water treatment plant or other supply point to the premises of the consumer.
10. “Water supply system” means the system of pipes, structures, and facilities through which a public water supply is obtained, treated, and sold or distributed for human consumption or household use. The system must have at least fifteen service connections or regularly serve an average of twenty-five or more persons for at least sixty days a year.
11. “Water treatment plant” means that portion of the water supply system that in some way alters the physical, chemical, or bacteriological quality of the water.

Source: S.L. 2017, ch. 199, § 22, effective April 29, 2019.

23.1-07-03. Classification of plants and systems.

The department shall classify all water treatment plants, water distribution systems, wastewater treatment plants, and wastewater collection systems with due regard to the size, type, character of water and wastewater to be treated, and other physical conditions affecting such facilities, and according to the skill, knowledge, and experience that an operator in responsible charge must have to successfully supervise the operation of such facilities, so as to protect the public health and prevent pollution of the waters of the state.

Source: S.L. 2017, ch. 199, § 22, effective April 29, 2019.

23.1-07-04. Certification.

When the department is satisfied an applicant is qualified by examination or otherwise to supervise the operation of treatment plants and systems, the department shall issue a certificate attesting to the competency of the applicant as an operator. The certificate must indicate the classification of treatment plant or system the operator is qualified to supervise.

1. A certificate issued under this chapter is valid for only one year and expires on the first day of July of the year after which it was issued.
2. The department may revoke or suspend the certificate of an operator issued under this chapter if the operator has practiced fraud or deception in obtaining the certificate or in the performance of the operator’s duty as an operator; if reasonable care, judgment, or the application of the operator’s knowledge or ability was not used in the performance of the operator’s duties; or if the operator is incompetent and unable to perform properly the operator’s duties as an operator. A certificate may not be revoked or suspended except after a hearing before the director of the department, or the director’s designated representative. If a certificate is suspended or revoked, a new application for certification may be considered by the department only after the conditions causing the suspension or revocation have been corrected, and evidence of this fact has been satisfactorily submitted to the department. A new certificate may then be granted by the department.
3. Certificates in appropriate classification issued to operators before the effective date of this chapter continue in effect.

Source: S.L. 2017, ch. 199, § 22, effective April 29, 2019.

23.1-07-05. Fees.

The department may charge a fee for certificates issued under this chapter, but the fees may not exceed fifty dollars for the initial certificate, or twenty-five dollars for the annual renewal certificate. All receipts from the fees must be deposited in the state treasury to be credited to a special fund to be known as the “operators’ certification fund” to be used by the department to administer and enforce this chapter and financially assist the department in conducting operator training programs. Any surplus at the end of the fiscal year must be retained by the department for future expenditures.

Source: S.L. 2017, ch. 199, § 22, effective April 29, 2019.

23.1-07-06. Duties of the department.

The department shall:

1. Hold at least one examination each year at a designated time and place for the purpose of examining candidates for certification.
2. Promote the program of certification of water supply and wastewater disposal system operators.
3. Distribute notices and applications and to receive and evaluate applications.
4. Collect fees for initial certification and annual renewal.
5. Prepare, conduct, and grade examinations.
6. Maintain records of operator qualifications, certification examination results, and a register of certified operators.
7. Promote and schedule regular training schools and programs.
8. Adopt rules necessary to carry out this chapter.

Source: S.L. 2017, ch. 199, § 22, effective April 29, 2019.

23.1-07-07. Unlawful operation.

Except as provided in this section, it is unlawful for any person to operate a water treatment plant or water distribution system serving twenty-five or more individuals or a wastewater treatment plant or wastewater collection system serving a population equivalent of twenty-five or more individuals unless the competency of the operator to operate such a plant or system is certified by the department in a grade corresponding to the classification of that portion of the system to be supervised. Operators of wastewater collection systems and wastewater stabilization ponds or other nonmechanical wastewater treatment plants that serve a population equivalent of less than five hundred individuals are excluded from this chapter. Operators of water supply systems that serve other than year-round residents are excluded from this chapter if all of the following conditions are met:

1. The water supply is obtained solely from ground water sources not under the direct influence of surface water.
2. Treatment, if provided, consists strictly of disinfection, fluoridation, sequestration, corrosion control, or other processes that involve simple chemical addition and minor operational control.
3. The water supply system is not required by the federal Safe Drinking Water Act or its implementing regulations to be operated by qualified personnel.

Source: S.L. 2017, ch. 199, § 22, effective April 29, 2019.

23.1-07-08. Violations — Penalty.

Any person violating this chapter or the rules adopted under this chapter, after written notice of the violation by the department, is guilty of a class A misdemeanor.

Source: S.L. 2017, ch. 199, § 22, effective April 29, 2019.

23.1-08-01. Finding of necessity.

The legislative assembly finds that:

1. The people of North Dakota have a right to a clean environment, and the costs of maintaining a clean environment through the efficient environmentally acceptable management of solid wastes should be borne by those who use such services.
2. Serious economic, management, and technical problems exist in the management of solid wastes resulting from residential, commercial, industrial, agricultural, and other activities carried on in said jurisdictions.
3. Inefficient and improper methods of managing solid wastes create serious hazards to the public health, result in scenic blights, cause pollution of air and water resources, cause accident hazards, increase rodent and insect disease vectors, have an adverse effect on land values, create public nuisances, and otherwise interfere with community life and development.
4. While the management of solid wastes is the responsibility of each person, problems of solid waste management have become a matter statewide in scope and concern, and necessitate state action through technical assistance and leadership in the application of new improved methods and processes to reduce the amount of solid wastes and unsalvageable materials and to promote environmentally acceptable and economical solid waste management.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-02. Definitions.

1. “Auxiliary container” means a bag, cup, bottle, straw, or other packaging, whether reusable or single-use, which is:
   1. Made of cloth, paper, plastic, corrugated material, aluminum, glass, postconsumer recycled material, or a similar material or substrate, including a coated, laminated, or multilayer substrate; and
   2. Designated for transporting, consuming, or protecting merchandise, food, or beverages from or at a food service or retail facility.
2. “Collection” means the aggregation of solid waste from the places at which the waste was generated.
3. “Department” means the department of environmental quality.
4. “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste into or on any land or water including ground water.
5. “Industrial waste” means solid waste, which is not a hazardous waste regulated under chapter 23.1-04, generated from the combustion or gasification of municipal waste and from industrial and manufacturing processes. The term does not include municipal waste or special waste.
6. “Infectious waste” means solid waste that may contain pathogens with sufficient virulence and in sufficient quantity that exposure of a susceptible human or animal to the solid waste could cause the human or animal to contract an infectious disease.
7. “Landfill” means a publicly or privately owned area of land where solid wastes are permanently disposed.
8. “Litter” means discarded and abandoned solid waste materials that are not special waste or industrial waste.
9. “Major appliance” means an air conditioner, clothes dryer, clothes washer, dishwasher, freezer, microwave oven, oven, refrigerator, stove, furnace, water heater, humidifier, dehumidifier, garbage disposal, trash compactor, or similar appliance.
10. “Municipal waste” means solid waste that includes garbage; refuse; and trash generated by households, motels, hotels, recreation facilities, public and private facilities; and commercial, wholesale, private, and retail businesses. The term does not include special waste or industrial waste.
11. “Open burning” means the combustion of solid waste without control of combustion air to maintain adequate temperature for efficient combustion, containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion, and control of the emission of the combustion products.
12. “Political subdivision” means a city, county, township, or solid waste management authority.
13. “Resource recovery” means the use, reuse, or recycling of materials, substances, energy, or products contained within or derived from solid waste.
14. “Solid 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 industrial, commercial, mining, and agricultural operations, and from community activities. The term does not include:
    1. Agricultural waste, including manures and crop residues, returned to the soil as fertilizer or soil conditioners; or
    2. Solid or dissolved materials in domestic sewage, or solid or dissolved material in irrigation return flows or industrial discharges that are point sources subject to permits under section 402 of the Federal Water Pollution Control Act, as amended [Pub. L. 92-500; 86 Stat. 816; 33 U.S.C. 1251 et seq.], or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended [68 Stat. 919; 42 U.S.C. 2011 et seq.].
15. “Solid waste management” means the purposeful systematic control of the storage, collection, transport, composting, resource recovery, land treatment, and disposal of solid waste.
16. “Special waste” means solid waste that is not a hazardous waste regulated under chapter 23.1-04 and includes waste generated from energy conversion facilities; waste from crude oil and natural gas exploration and production; waste from mineral and ore mining, beneficiation, and extraction; and waste generated by surface coal mining operations. The term does not include municipal waste or industrial waste.
17. “Storage” means the containment and holding of solid waste after generation for a temporary period, at the end of which the solid waste is processed for resource recovery, treated, disposed of, or stored elsewhere.
18. “Transport” means the offsite movement of solid waste.

Source: S.L. 2019, ch. 219, § 3, effective August 1, 2019.

23.1-08-03. Powers and duties of the department.

The department shall:

1. Administer and enforce the state solid waste management program under this chapter.
2. Provide technical assistance on request to political subdivisions of the state and cooperate with appropriate federal agencies in carrying out the duties under this chapter. On request, the department may provide technical assistance to other persons.
3. Encourage and recommend procedures for using self-financing solid waste management systems and intermunicipal agencies.
4. Promote the planning and application of resource recovery facilities and systems that preserve and enhance the quality of air, water, and all resources.
5. Serve as the official state representative for all purposes of the Federal Solid Waste Disposal Act [Pub. L. 89-272; 79 Stat. 997; 42 U.S.C. 6901 et seq.], as amended, and for other state or federal legislation to assist in the management of solid wastes.
6. Survey the solid waste management needs within the state and maintain and upgrade the North Dakota solid waste management plan.
7. Require any person within the state to submit for review and approval a solid waste management plan to show that solid wastes will be disposed of in accordance with the provisions of this chapter.
8. Adopt and enforce rules governing solid waste management to conserve the air, water, and land resources of the state; protect the public health; prevent environmental pollution and public nuisances; and enable the department to administer this chapter, the adopted solid waste management plan, and delegated federal programs.
9. Establish procedures for permits governing the design, construction, operation, and closure of solid waste management facilities and systems.
10. Prepare, issue, modify, revoke, and enforce orders, after investigation, inspection, notice, and hearing, prohibiting violation of this chapter or of any rules issued under this chapter, and requiring remedial measures for solid waste management as may be necessary or appropriate under this chapter.
11. Adopt rules to establish categories and classifications of solid waste and solid waste management facilities based on waste type and quantity, facility operation, or other facility characteristics and to limit, restrict, or prohibit the disposal of solid wastes based on environmental or public health rationale.
12. Adopt rules to establish standards and requirements for each category of solid waste management facility.
13. Adopt rules to establish financial assurance requirements to be met by any person proposing construction or operation of a solid waste management facility sufficient to provide for closure and postclosure activities. Financial assurance requirements may include: insurance, trust funds, surety bonds, letters of credit, personal bonds, certificates of deposit, and financial tests or corporate guarantees.
14. Conduct an environmental compliance background review of any applicant for any permit. In conducting the review, if the department finds an applicant for a permit has intentionally misrepresented or concealed any material fact from the department, or has obtained a permit by intentional misrepresentation or concealment of a material fact, has been convicted of a felony or pleaded guilty or nolo contendere to a felony within three years preceding the application for the permit, or has been adjudicated in contempt of an order of any court within three years preceding the application for the permit, the department may deny the application. The department shall consider the relevance of the offense to the business to which the permit is issued, the nature and seriousness of the offense, the circumstances under which the offense occurred, the date of the offense, and the ownership and management structure in place at the time of the offense.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-04. Coal combustion residuals — Present use and disposal deemed acceptable.

Notwithstanding any other provision of law, the legislative assembly deems the present use and disposal of coal combustion residuals to be acceptable and that present regulation allows for the beneficial use of coal combustion residuals in concrete, for other construction applications, and for other innovative uses and allows for safe disposal without coal combustion residuals being regulated as a hazardous waste. If a federal law or regulation is adopted pertaining to the use and disposal of coal combustion residuals, this section does not prohibit the state from seeking state primacy of the federal program.

Source: S.L. 2017, ch. 199, § 23; 2019, ch. 220, § 1, effective August 1, 2019.

23.1-08-05. Commercial oilfield special waste recycling facilities — Action against well operators restricted.

1. By June 1, 2015, the department shall select at least one commercial oilfield special waste recycling facility having a pending beneficial use application, for authorization of operation of the facility as a pilot project and to assist the department to develop standards for recycling of oilfield special waste. The pending beneficial use application of the pilot project facility must be supported by scientific findings from a third-party source focused on the anticipated environmental performance of the end products of the recycled oilfield special waste and the practical utility of those end products.
2. Any pilot project facility and any commercial oilfield special waste recycling facility permitted after June 30, 2017, shall obtain a solid waste permit from the department and a treating plant permit from the industrial commission for treatment of oilfield special waste.
3. Any selected pilot project facility may operate as an oilfield special waste recycling facility through June 30, 2017, and may implement beneficial use demonstration projects using processed materials under the guidance of the department. A selected pilot project facility operator shall cooperate with the department to monitor and analyze impacts to the environment.
4. By July 1, 2017, based upon the results of any pilot projects, the department shall make recommendations either to adopt rules under chapter 28-32 governing operations and permitting of commercial oilfield special waste recycling facilities, or to develop written guidelines on recycling and beneficial use of oilfield special waste under the department’s beneficial use approval process. The rules or guidelines must assure compliance with federal and state laws and rules for protection of the state’s water and air and public health in the handling and subsequent use of oilfield special waste.
5. Upon presentation of official credentials, an employee authorized by the department may:
   1. Examine the premises and facilities and copy books, papers, records, memoranda, or data of a commercial oilfield special waste recycling facility.
   2. Enter upon public or private property to take action authorized by this chapter and rules adopted under this chapter, including obtaining information from any person, conducting surveys and investigations, and taking corrective action.
6. The operator of the commercial oilfield special waste recycling facility is liable for the cost of any inspection and corrective action required by the department.
7. As a condition of permitting, the department may require the operator of a commercial oilfield special waste recycling facility to post a bond or other financial assurance payable to the state in a sufficient amount for remediation of any release or disposal of oilfield special waste in violation of the rules of the department, on the premises or property of the facility or at a place where treated or untreated materials from the facility are taken for use or disposal.
8. As used in this section:
   1. “Commercial oilfield special waste recycling facility” means a commercial recycling facility permitted, or a commercial recycling facility pilot project authorized, under this section for extraction of reusable solids and fluids from any or all types of oilfield special waste.
   2. “Drilling operation” means oil and gas drilling and production operations and any associated activities that generate oilfield special waste.
   3. “Oilfield special waste” means special waste associated with oil and gas drilling operations, exploration, development, or production and specifically includes drill cuttings, saltwater, and other solids and fluids from drilling operations.
9. Upon delivery of oilfield special waste to a commercial oilfield special waste recycling facility that is permitted or authorized to conduct recycling operations under this section and is not affiliated with the well operator, acceptance of the oilfield special waste by the recycling facility, and after the oilfield special waste has been treated and converted to a beneficial use as a usable product or legitimate substitute for a usable product, the well operator is not liable in any civil or criminal action for any subsequent claim or charge regarding the material converted to a beneficial use.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-06. Local government ordinances.

Any political subdivision of the state may enact and enforce a solid waste management ordinance that is equal to or more stringent than this chapter and the rules adopted under this chapter.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-06.1. Prohibition on political subdivision ordinance regulating auxiliary containers.

1. Notwithstanding any other provision of law, a political subdivision may not adopt or enforce an ordinance that:
   1. Regulates the use or disposition of an auxiliary container;
   2. Prohibits or restricts an auxiliary container; or
   3. Imposes a fee, charge, or tax on an auxiliary container.
2. This section may not be construed to prohibit or restrict:
   1. A curbside or commercial recycling program;
   2. A designated residential or commercial recycling location;
   3. A political subdivision from adopting or enforcing an ordinance prohibiting littering; or
   4. A political subdivision or a public or private facility from using or regulating an auxiliary container on property owned by the respective political subdivision or public or private facility.

Source: S.L. 2019, ch. 219, § 4, effective August 1, 2019.

23.1-08-07. Littering and open burning prohibited — Penalty.

1. A person may not discard and abandon litter, furniture, or major appliances upon public property or upon private property not owned by that person, unless the property is designated for the disposal of litter, furniture, or major appliances and that person is authorized to use the property for that purpose.
2. A person may not engage in the open burning of solid waste, unless the burning is conducted in accordance with rules adopted by the department.
3. A person violating this section is guilty of an infraction for which a minimum fine of two hundred dollars must be imposed, except if the litter discarded and abandoned amounted to more than one cubic foot [0.0283 cubic meter] in volume or if the litter consisted of furniture or a major appliance, the offense is a class B misdemeanor and the person is subject to the civil penalty provided in section 23.1-08-23.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-08. Prohibition in landfill disposal — Lead-acid batteries accepted as trade-ins.

1. Infectious waste must be properly treated before disposal by methods approved by the department. A person may not knowingly deposit in a landfill untreated infectious waste.
2. Except as provided in subsection 3, a person may not place in municipal waste or discard or dispose of in a landfill lead-acid batteries, used motor oil, or major appliances.
3. If resource recovery markets are not available for the items listed in subsection 2, the items must be disposed of in a manner approved by the department.
4. Lead-acid batteries must be accepted as trade-ins for new lead-acid batteries by any person who sells lead-acid batteries at retail.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-09. Permits.

1. The department may issue permits for solid waste management facilities and solid waste transporters. A person may not own, operate, or use a facility for solid waste disposal or transport solid wastes without a valid permit. Upon receipt of a permit application, the department shall give public notice, in the official newspaper of the county in which the facility is to be located, that the department is considering an application for a solid waste management facility. The notice must state the name of the applicant, the location of the facility, and a description of the facility. The department shall require as a condition of a permit for a solid waste management facility, not owned or operated by the state or a political subdivision, that any entity that controls the permitholder agrees to accept responsibility for any remedial measures, closure and postclosure care, or penalties incurred by the permitholder. For purposes of this section, “control” means ownership or control, directly, indirectly, or through the actions of one or more persons of the power to vote twenty-five percent or more of any class of voting shares of a permitholder, or the direct or indirect power to control in any manner the election of a majority of the directors of a permitholder, or to direct the management or policies of a permitholder, whether by individuals, corporations, partnerships, trusts, or other entities or organizations of any type. All permits are nontransferable, are for a term of not more than ten years from the date of issuance, and are conditioned upon the observance of the laws of the state and the rules adopted under this chapter.
2. For each permit application, the department shall notify the board of county commissioners of a county in which a new solid waste management facility will be located of the department’s intention to issue a permit for the facility. The board of county commissioners may call a special election to be held within sixty days after receiving notice from the department to allow the qualified electors of the county to vote to approve or disapprove of the facility based on public interest and impact on the environment. If a majority of the qualified electors voting on the question in the election vote to disapprove of the facility, the department may not issue the permit and the facility may not be located in that county.
3. Notwithstanding subsection 2, if the new solid waste management facility will be owned or operated by a solid waste management authority, a special election to approve or disapprove of a facility may be called only if the boards of county commissioners from a majority of the counties in the solid waste management district call for a special election. However, a special election must be conducted in each county within the authority. If a majority of the qualified electors voting on the question in the election vote to disapprove of the facility, the department may not issue the permit.
4. Subsections 2 and 3 do not apply to a solid waste management facility operated as part of an energy conversion facility or part of a surface coal mining and reclamation operation, if the solid waste management facility disposes of only waste generated by the energy conversion facility or surface coal mining and reclamation operation.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-10. Fees — Deposit in operating fund.

The department by rule may prescribe the payment and collection of reasonable fees to issue permits or registration certificates for registering, licensing, or permitting solid waste generators, transporters, and treatment, storage, recycling, or disposal facilities. The 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 expenditures from the fund are subject to appropriation by the legislative assembly. Applicants for special waste solid waste management facilities shall submit a minimum fee as follows:

1. Twenty thousand dollars for any facility that receives on average one hundred tons [90718 kilograms] or more per day.
2. Ten thousand dollars for any facility which receives on average more than ten tons [9071.80 kilograms] but less than one hundred tons [90718 kilograms] per day.

Source: S.L. 2017, ch. 199, § 23; 2019, ch. 216, § 4, effective April 29, 2019.

23.1-08-11. Solid waste management fund — Administration.

The solid waste management fund is a special fund in the state treasury. The Bank of North Dakota shall administer the fund. The fund is a revolving fund, subject to appropriation by the legislative assembly. The Bank may annually deduct up to one-half of one percent of the fund balance including the principal balance of the outstanding loans as a service fee for administering the fund. The Bank shall contract with a certified public accounting firm to audit the fund once every two years. The cost of the audit and any other actual costs incurred by the Bank on behalf of the fund must be paid from the fund. Section 54-44.1-11 does not apply to the fund.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-12. Applications for grants or loans — Loan terms.

Moneys in the solid waste management fund may be used to make grants or low-interest loans to political subdivisions for waste reduction, planning, resource recovery, and recycling projects with an emphasis on marketing. An application for a grant or loan out of moneys in the solid waste management fund must be made to the department. The department shall review an application to determine if the purpose of the grant or loan is consistent with the purposes of the fund and the district solid waste management plan. The department shall adopt rules to implement this section. If the department approves an application, the department shall forward the application and the results of the department’s review of the application to the Bank of North Dakota. The Bank, in consultation with the department, shall determine the financial criteria that must be met for an application to be approved. A loan must be repaid within a period not exceeding twenty years at an interest rate of four percent.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-13. Preconstruction site review.

The department, in cooperation with the department of water resources and the state geologist, shall develop criteria for siting a solid waste disposal facility based upon potential impact on environmental resources. Any application for a landfill permit received after the department develops siting criteria as required by this section must be reviewed for site suitability by the department after consultation with the department of water resources and state geologist before any site development. Site development does not include the assessment or monitoring associated with the review as required by the department in consultation with the department of water resources and state geologist.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019; 2021, ch. 488, § 7, effective August 1, 2021.

23.1-08-14. Waste characterization.

The department may not allow the storage or disposal of solid waste from outside this state, unless it is demonstrated that the governing authority or the generator of the solid waste from outside this state has an effective program for waste quality control and for waste characterization.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-15. Municipal waste landfills and incinerators — Certification.

A municipal waste landfill and a municipal waste incinerator must have at least one individual certified by the department onsite at all times during the operation of the landfill or incinerator. The department shall adopt training standards and certification requirements.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-16. Public educational materials — Municipal waste reduction and recycling.

The department, after consulting with the superintendent of public instruction, shall develop and disseminate educational materials to encourage voluntary municipal waste reduction, source separation, reuse of materials, recycling efforts, and appropriate management of municipal waste.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-17. 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, 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 solid 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 which has been entered against the applicant within five years before the date of submission of the application.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-18. Inspections.

The department may inspect all solid waste management activities and facilities, at all reasonable times, to ensure compliance with the laws of this state, the provisions of this chapter, and the rules authorized under this chapter.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-19. Administrative procedure and judicial review.

A proceeding under this chapter to adopt or modify rules, including emergency orders relating to solid waste management and land protection, or determine compliance with rules of the department, must be conducted in accordance with the provisions of chapter 28-32, and appeals may be taken as provided under that chapter. When an emergency exists requiring immediate action to protect the public health and safety, the department may, without notice or hearing, issue an order reciting the existence of the emergency and requiring action be taken as necessary to meet the emergency. Notwithstanding any provision of this chapter, the order is effective immediately, but on application to the department must be afforded a hearing before the environmental review advisory council within ten days. On the basis of the hearing, the emergency order must be continued, modified, or revoked within thirty days after the hearing.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-20. Injunction proceedings.

The violation of any provision of this chapter, or any rule or order issued under the chapter is declared a nuisance inimical to the public health, welfare, and safety. Whenever in the judgment of the department a person has engaged in or is about to engage in any acts that constitute or will constitute a violation of this chapter, or any rule or order issued under the chapter, the department, in accordance with the laws governing injunctions and other process, may maintain an action in the name of the state enjoining the action or for an order directing compliance, and upon a showing by the department that the person has engaged or is about to engage in the acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-21. Plats.

A person operating a solid waste management facility for disposal under a permit issued under this chapter shall, upon completion of the operation at each site, file a plat of the area with the recorder of each county in which the facility is located, together with a description of the wastes placed therein.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-22. Exemption.

The provisions of this chapter, and the rules or orders authorized under the chapter, do not prevent an individual who resides on unplatted land in unincorporated areas of this state from disposing of that individual’s normal household wastes on that individual’s property, so long as doing so does not create a health hazard or nuisance.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019.

23.1-08-23. Penalties.

1. Any person that violates this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter is subject to a civil penalty not to exceed twelve thousand five hundred dollars per day per violation, unless the penalty for the violation is otherwise specifically provided for and made exclusive in this chapter.
2. Any person that willfully violates any provision of this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter is guilty of a class C felony, unless the penalty for the violation is otherwise specifically provided for and made exclusive in this chapter.
3. Any person that willfully makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter or that falsifies, tampers with, or willfully renders inaccurate any monitoring device or method required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter is guilty of a class C felony, unless the penalty for the violation is otherwise specifically provided for and made exclusive in this chapter.
4. The following citizen participation provisions apply to violations of this chapter relating to coal combustion residuals or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter relating to coal combustion residuals:
   1. A person having an interest that may be affected adversely by a violation of this chapter may commence a civil action to compel compliance with this chapter, or a rule, order, or permit issued under this chapter.
   2. Notice of the violation must be given to the department and to an alleged violator sixty days before commencement of a citizen suit brought under this subsection.
   3. A person with an interest that may be affected adversely by a violation of this chapter may intervene as a matter of right in a civil action brought by the department to require compliance with this chapter.

Source: S.L. 2017, ch. 199, § 23, effective April 29, 2019; 2019, ch. 220, § 2, effective August 1, 2019.

23.1-10-01. Environmental emergency cost recovery. [Repealed]

Source: S.L. 2017, ch. 199, § 25, effective April 29, 2019; repealed by 2021, ch. 212, § 19, effective July 1, 2021.

23.1-10-02. Environmental quality restoration fund — Continuing appropriation.

There is established an environmental quality restoration fund into which the funds recovered in this chapter may be deposited. The fund is to be administered by the department of environmental quality and may be used by the department for costs of environmental assessment, removal, corrective action, or monitoring as determined on a case-by-case basis. All moneys placed in the fund under this section and section 23.1-10-05 are appropriated to the department on a continuing basis.

Source: S.L. 2017, ch. 199, § 25, effective April 29, 2019; 2021, ch. 212, § 2, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-03. Rules adoption.

The department of environmental quality may adopt rules to implement this chapter.

Source: S.L. 2017, ch. 199, § 25, effective April 29, 2019.

23.1-10-04. Definitions.

As used in this chapter, unless the context otherwise requires:

1. “Containment unit” means any one or a combination of containers, vessels, and enclosures, including structures and appurtenances connected to them, which is or has been used to contain or dispense a regulated substance and is either stationary or attached to a motor vehicle. The definition includes pipeline facilities that transport and store regulated substances.
2. “Corrective action” means an action taken to investigate, minimize, contain, eliminate, remediate, mitigate, monitor, or clean up a release including any necessary emergency remedial effort.
3. “Corrective action cost” means any cost incurred by the department in conducting or overseeing corrective actions performed on a release; or the performance of reasonable measures undertaken to prevent or mitigate damage to the public health, public safety, public welfare, or environment of the state.
4. “Department” means the department of environmental quality.
5. “Emergency remedial effort” means an action taken to protect the public health, public safety, or environment from imminent danger resulting from a release, and an action taken to contain a release that, if not contained, will pose in time a greater threat to the public health, public safety, or environment than if the action is not taken immediately.
6. “Environment” means land, including public and private property, surface and underground waters, fish, wildlife, biota, air, and other similar resources within the state.
7. “Fund” means the environmental quality restoration fund.
8. “Institutional controls” and “activity and use limitations” are restrictions on the use and management of real property, including buildings or fixtures, containing or preventing migration of regulated substances or other pollution or contamination, or protecting receptors from exposure or the threat of exposure to regulated substances or other pollution or contamination. Institutional controls may apply:
   1. During environmental remediation activities; or
   2. To residual regulated substances, pollutants, or other pollution or contamination or the byproducts of residual regulated substances, pollutants, or other pollution or contamination which 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.
9. “Potentially responsible party” means a person identified as a possible cause of, or contributor to, contamination or pollution on a site or property.
10. “Regulated substance” means a compound designated by the department, including pesticides and fertilizers regulated by the department of agriculture; the hazardous substances designated by the Federal Water Pollution Control Act [Pub. L. 80-845; 62 Stat. 1155; 33 U.S.C. 1251 et seq.]; the toxic pollutants designated by the Federal Water Pollution Control Act and the Toxic Substances Control Act [Pub. L. 94-469; 90 Stat. 2003; 15 U.S.C. 2601 et seq.]; the hazardous substances designated by the federal Comprehensive Environmental Response, Compensation, and Liability Act [Pub. L. 96-510; 94 Stat. 2767; 42 U.S.C. 9601 et seq.]; petroleum, petroleum substances, oil, gasoline, kerosene, fuel oil, oil sludge, oil refuse, production water, oil mixed with other wastes, crude oils, substances, or additives to be utilized in refining or blending crude petroleum or petroleum stock; any other oil or petroleum substance; solid waste regulated under chapter 23.1-08; and technologically enhanced naturally occurring radioactive material regulated under chapter 23.1-03. Radioactive material other than technologically enhanced naturally occurring radioactive material is not a regulated substance under this chapter.
11. “Release” means an intentional or unintentional act or omission that results in the discharge, spill, leak, emission, escape, or disposal of a regulated substance into the environment and harms or threatens harm to public health or public safety or the environment.
12. “Responsible party” means a person that causes or contributes to an onsite or offsite release or threatened release, or that is responsible for an illegal or unpermitted storage, of a regulated substance that results in the contamination or pollution of a property or site.

Source: S.L. 2021, ch. 212, § 3, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-05. Revenue to the fund.

Revenue from the following sources must be deposited in the state treasury and credited to the fund:

1. If the balance of the fund is less than five million dollars, moneys recovered by the department in an action or administrative proceeding based on violation of the state’s environmental statutes, including actions for administrative expense recoveries, civil penalties, compensatory damages; and money paid pursuant to any agreement, stipulation, or settlement. This section does not limit the department’s ability to agree to a supplemental environmental project as part of a settlement.
2. Moneys donated to the department for the purposes of this chapter.
3. Transfers from the abandoned oil and gas well plugging and site reclamation fund under subdivision f of subsection 2 of section 38-08-04.5.
4. Moneys received from a federal agency for the purpose of this section.
5. Any other moneys as may be deposited in the fund for use in carrying out the purposes of this chapter.

Source: S.L. 2021, ch. 212, § 4, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-06. Release of regulated substance prohibited — Exception.

The release of a regulated substance is prohibited. This section does not apply to releases of regulated substances pursuant to and in compliance with the conditions of a federal or state environmental permit.

Source: S.L. 2021, ch. 212, § 5, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-07. Releases from petroleum tanks.

Releases from petroleum tanks are subject to this chapter, but the department may expend moneys in the fund to address releases from petroleum tanks only if there are no available moneys in the petroleum tank release compensation fund under chapter 23.1-12.

Source: S.L. 2021, ch. 212, § 6, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-08. Responsible parties.

1. If the department determines a release has occurred, the department shall identify the responsible party.
2. If no other viable responsible party can be located after the department’s reasonable investigation, the department shall consider a person that became an owner of the property after the release to be a responsible party, subject to the limitations in this section.
   1. Notwithstanding any other provision of law and except as expressly provided by federal law, a person that acquires property is not liable for an existing regulated substance on the property if the person:
      1. Acquired the property after the disposal or placement of the regulated substance on, in, or at the property; and at the time the property was acquired did not know and had no reason to know a regulated substance was disposed of on, in, or at the property;
      2. Is a governmental entity that acquired the property by escheat, by tax sale, by foreclosure, through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation; or
      3. Acquired the property by inheritance or bequest, and did not know a regulated substance was disposed of on, in, or at the property; or is the owner of the surface estate and the regulated substance was released as a result of oil or gas drilling and production operations, or other operation authorized by chapter 38-08, and the owner of the surface estate is not and has never been an operator of oil and gas wells permitted under chapter 38-08.
   2. To establish the person had no reason to know a regulated substance was disposed of on, in, or at the property, the person must have undertaken, at the time of acquisition, all appropriate inquiries 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, the department 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 regulated substances at the property, and the ability to detect the regulated substances by appropriate inspection.
   3. A person that has acquired real property may establish a rebuttable presumption the person has made all appropriate inquiries if the person establishes the person performed an investigation of the property, conducted by an environmental professional immediately before or at the time of acquisition, to determine or discover the obviousness of the presence or likely presence of a release or threatened release of regulated substances on the property.
   4. The presumption does not arise unless the person has maintained a compilation of the information reviewed during the investigation.
   5. This section does not diminish the liability of a previous owner or operator of the property which otherwise would be liable under this chapter, and nothing in this section affects the liability under this chapter of a person that, by any act or omission, caused or contributed to the release or threatened release of a regulated 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, such as an engineer, environmental consultant, and attorney, who, through academic training, occupational experience, and reputation, can objectively conduct one or more aspects of an environmental investigation.
3. A lender-owner is liable for a release or threatened release of a regulated substance only as provided in chapter 32-40.1.

Source: S.L. 2021, ch. 212, § 7, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-09. Duty to provide information — Inspections.

1. When requested by the department, a responsible or potentially responsible party, or owner of real property where a release or threatened release is located or where response actions are proposed to be taken, shall furnish to the department any information the person may have or reasonably may obtain which is relevant to the release or threatened release.
2. The department, upon presentation of credentials, may:
   1. Examine and copy any books, papers, records, memoranda, or data of any person that has a duty to provide information to the department under subsection 1; and
   2. Enter upon any property, public or private, to take action authorized by this chapter, including obtaining information from a person that has a duty to provide the information under subsection 1, conducting surveys or investigations, and taking removal or remedial action.

Source: S.L. 2021, ch. 212, § 8, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-10. Authority to establish and enforce remediation requirements.

In determining the appropriate standards to be achieved by corrective actions taken or requested under this chapter to protect public health and welfare and the environment from a release or threatened release, the department shall consider the planned use of the property where the release or threatened release is located. This chapter does not limit the authority of the department to establish environmental standards for remediation of air, soil, or water pollution pursuant to this title or chapters 61-28 and 61-28.1, or to enforce site-specific environmental remediation requirements in particular cases.

Source: S.L. 2021, ch. 212, § 9, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-11. Action to compel performance — Injunctive relief.

1. The department may make a request for corrective action to a responsible party. A request must be in writing, state the action requested, the reasons for the action, and reasonable times for the action to begin and be completed taking into account the urgency of the action for protection of the public health or welfare or the environment.
2. If a person responsible for a release or threatened release of a regulated substance fails to take corrective actions or make reasonable progress in completing corrective actions requested under subsection 1, the department may bring an action to compel performance of the requested corrective actions. If any person having any right, title, or interest in and to the real property where the containment unit is located or where corrective actions are proposed to be taken is not a person responsible for the release or threatened release, the person may be joined as an indispensable party in an action to compel performance to assure the requested corrective actions can be taken on that property by the responsible parties.
3. The release or threatened release of a regulated substance may constitute a public nuisance and may be enjoined in an action brought by the department.

Source: S.L. 2021, ch. 212, § 10, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-12. Cost recovery.

The department may recover its reasonable and necessary expenses incurred under this chapter, including all corrective action costs and administrative and legal expenses, in a civil action brought against a responsible party. The department’s certification of expenses is prima facie evidence the expenses are reasonable and necessary. The department shall provide written notice to a responsible party before incurring costs, except when prior notice is not possible because the identity of the responsible party is unknown or situations require emergency remedial efforts.

Source: S.L. 2021, ch. 212, § 11, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-13. Corrective action costs as lien — Filing of notice of lien — Contents — Attachment priority.

All corrective action costs expended from the fund pursuant to this chapter constitute a lien on all property owned by the responsible party when a notice of lien is filed with the recorder in the county where the property is located. The notice of lien must contain a description of the property of the responsible party upon which the lien is made, a description of the property upon which corrective action or emergency remedial efforts were made, and a statement of the corrective action costs expended from the fund. Upon entry, the lien must attach to all real property of the responsible party. The lien has priority over all other claims or liens on the property, except those perfected before the department’s filing of the notice of lien.

Source: S.L. 2021, ch. 212, § 12, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-14. Other remedies.

This chapter does not limit the powers of the department or preclude the pursuit of any other administrative, civil, injunctive, or criminal remedies by the department or any other person. Administrative remedies do not need to be exhausted to proceed under this chapter. The remedies provided by this chapter are in addition to those provided under other statutory or common law.

Source: S.L. 2021, ch. 212, § 13, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-15. Voluntary response actions — Liability protection — Procedures.

1. Subject to the provisions of this section, a person that is not otherwise responsible under this chapter or another environmental law for a release or threatened release is not responsible solely because the person undertakes and completes response actions to remove or remedy releases or threatened releases at an identified area of real property in accordance with a voluntary cleanup agreement.
2. A person requesting liability protection under this section shall submit an application in the form required by the department. The requestor also shall submit a voluntary response action plan that includes an investigation report prepared by an appropriate professional describing the methods and results of an investigation of the releases and threatened releases at the identified area of real property, methods of investigation, and the analytical results and professional’s evaluation of the reported information. The department may approve the application only if the department determines the nature and extent of the releases and threatened releases at the identified area of real property have been identified and evaluated adequately in the investigation report. The department’s approval also must be based on consideration of the following:
   1. If reuse or development of the property is proposed, the voluntary response action plan provides for all response actions required to carry out the proposed reuse or development;
   2. The response actions and the activities associated with any reuse or development proposed for the property will not aggravate or contribute to releases or threatened releases that are not required to be removed or remedied under the voluntary response action plan, and will not interfere with or substantially increase the cost of response actions to address the remaining releases or threatened releases; and
   3. The owner of the property or other relevant person agrees to cooperate with the department or other persons acting at the department’s direction in taking response actions necessary to address remaining releases or threatened releases, and to avoid any action that interferes with the response actions.
3. If the department approves the application, the department and requestor shall enter a voluntary cleanup agreement in which the department agrees to take no action under title 23.1 and chapters 61-28 and 61-28.1 against the requestor and those persons identified in subsection 5 so long as the plan is implemented pursuant to the agreement’s terms and with the exercise of due care. As part of the agreement, the department may require the owner, requestor, or other relevant person agrees to any of the following conditions:
   1. To provide access to the property;
   2. To allow reasonable and necessary activities at the property, including placement of borings, wells, equipment, and structures on the property; and
   3. To enter an environmental covenant for the property containing institutional controls under chapter 47-37. Alternatively, institutional controls may be imposed on the property using zoning regulations under section 23.1-10-16.
4. Response actions taken under a voluntary cleanup agreement are not complete until the department certifies completion in writing. The department shall issue a certificate of completion if the parties demonstrate to the department’s satisfaction the response action is complete. If a voluntary response action plan does not require removal or remedy of all regulated substances, the department may condition the certificate of completion on the owner’s, requestor’s, or other relevant person’s continued compliance with conditions in the voluntary cleanup agreement or other conditions deemed necessary by the department.
5. In addition to the person that undertakes and completes a voluntary response action pursuant to a voluntary cleanup agreement, the liability protection provided by this section applies to the following persons so long as the persons comply with any conditions imposed by the department under subsection 4:
   1. The owner of the identified property, if the owner is not responsible for any release or threatened release identified in the approved voluntary response action plan;
   2. A person providing financing to the person that undertakes and completes the response actions or that acquires or develops the identified property;
   3. A fiduciary that arranges for the undertaking and completion of response actions; and
   4. A successor or assignee of a person to which the liability protection applies.
6. Notwithstanding subsection 1, when a person that is responsible for a release or threatened release undertakes and completes response actions, the protection from liability provided by this section applies to persons described in subsection 5 if the response actions are undertaken and completed in accordance with the following:
   1. The response actions must be undertaken and completed in accordance with a voluntary cleanup agreement.
   2. When the department issues a certificate of completion for response actions completed by a responsible party, the department and the responsible party may enter an agreement that resolves the responsible party’s future liability to the department for the release or threatened release addressed by the response actions.
7. The protection from liability provided by this section does not apply to a person that:
   1. Aggravates or contributes to a release or threatened release that was not remedied under an approved voluntary response action plan; or
   2. Obtains the department’s approval of a voluntary cleanup agreement for purposes of this section by fraud or misrepresentation or by knowingly failing to disclose material information, or that knows the approval was so obtained before taking an action that would have made the person subject to the protection of this section.
8. This section does not affect the authority of the department to exercise any powers or duties with respect to a new or additional release or threatened release of a 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 a person not subject to a liability protection provided under this section.

Source: S.L. 2021, ch. 212, § 14, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-16. Zoning regulations establishing institutional controls.

1. If 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 release or threatened release. Before the institutional controls become effective, the controls 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 shall provide all notices under this subdivision, but any public hearing must be held jointly by the political subdivision and the department.
2. The department shall consider the factors in subsection 2 of section 23.1-10-15 before agreeing to institutional controls under this section.
3. Institutional controls may be terminated or amended at any time by written agreement between the department and the relevant political subdivision.

Source: S.L. 2021, ch. 212, § 15, effective July 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-10-17. Liability protections issued before August 1, 2021.

This chapter does not affect liability protections related to releases or threatened releases of regulated substances issued by the department before August 1, 2021. These liability protections remain in effect, subject to any conditions that were imposed by the department and the statutes in effect on the date issued.

Source: S.L. 2021, ch. 212, § 16, effective August 1, 2021.

Note.

Section 20 of chapter 212, S.L. 2021, provides, “ RETROACTIVE APPLICATION. This Act is retroactive in application.”

23.1-11-01. Degradation prevention program — Maintenance of waters.

This chapter establishes a degradation prevention program to protect ground water resources, encourage the wise use of agricultural chemicals, provide for public education regarding preservation of ground water resources, and provide for safe disposal of wastes in a manner that will not endanger the state’s ground water resource. Waters of the state must be maintained within standards established under this chapter unless it can be affirmatively demonstrated that a change in quality is justifiable to provide necessary economic or social development and will not adversely affect the beneficial uses of water.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019.

23.1-11-02. Administration of chapter.

The department of environmental quality shall administer this chapter. For purposes of this chapter, “commissioner” means the agriculture commissioner and “department” means the department of environmental quality. Notwithstanding section 4.1-33-03, the agriculture commissioner shall administer chapter 4.1-33 as it relates to pesticide usage.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019.

23.1-11-03. Education program.

The department, the commissioner, the North Dakota state university extension service, and the North Dakota agricultural experiment station shall cooperate with other state and federal agencies on the development of a ground water protection education program.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019.

23.1-11-04. Chemical use data and confidentiality requirement.

The department may require chemical use data from product registrants on products that have been or may likely be found in ground water to conduct its ground water protection program. This information must include chemical registration data and sales information. The department shall keep this information confidential.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019.

23.1-11-05. Ground water standards.

The department shall establish standards for compounds in ground water as set forth by other states and the United States environmental protection agency unless new scientifically confirmed data provides justification for changing these standards.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019.

23.1-11-06. Ground water quality monitoring.

The department shall conduct ground water quality monitoring activities in cooperation with the department of water resources and other state agencies. Based on monitoring results, the department of environmental quality shall implement or require appropriate mitigation activities or remedial action to prevent future contamination of ground water. The commissioner may implement or require appropriate mitigation activities pursuant to chapter 4.1-33 to prevent future contamination of ground water as it relates to the use of pesticides.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019; 2021, ch. 488, § 8, effective August 1, 2021.

23.1-11-07. Notification requirement.

A person with verifiable information on the presence of contamination of ground water within the state shall notify the department regarding the contamination.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019.

23.1-11-08. Access for ground water monitoring.

The department may request landowners or operators allow access for monitoring of ground water and of soils at a depth where pesticides may threaten ground water. If the department is denied access by the landowner or operator, the department may apply to any court of competent jurisdiction for authorization to obtain access. The court, upon the application and compliance with chapter 29-29.1, may issue the authorization for the purposes requested. After consultation with the landowner or operator, the department shall conduct the monitoring in a manner that causes the least possible economic impact or hindrance to the landowner’s or operator’s operations. The names and addresses of landowners and operators who participate in a ground water monitoring program may not be linked, in any public disclosure, to the findings of the program unless it is determined by rule that a compelling public interest justifies the disclosure. Without that determination, disclosure of the information is a violation of section 12.1-13-01.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019.

23.1-11-09. Pollution prevention criteria.

The commissioner, in cooperation with the department, North Dakota state university extension service, and the North Dakota agricultural experiment station, may develop pollution prevention criteria for areas utilized for mixing and storing agricultural chemicals at the retail and end use levels.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019.

23.1-11-10. Wellhead protection program.

The department, in cooperation with the department of water resources and state geologist, shall assist in implementing a public water supply wellhead protection program for protection of ground water resources utilizing existing state and local statutory authority.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019; 2021, ch. 488, § 9, effective August 1, 2021.

23.1-11-11. Rules.

The department, with the approval of the commissioner and the director of the department of water resources, shall adopt rules necessary for implementation of this chapter.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019; 2021, ch. 488, § 10, effective August 1, 2021.

23.1-11-12. Producer liability.

Liability may not be imposed upon an agricultural producer for costs of active cleanup, or for any damage associated with or resulting from the detection in ground water, of a pesticide if the applicator has complied with label instructions and other precautions for application of the pesticide and the applicator has a valid appropriate applicator’s certification. Compliance with these requirements may be raised as an affirmative defense by an agricultural producer.

Source: S.L. 2017, ch. 199, § 26, effective April 29, 2019.

23.1-12-01. Petroleum tank release compensation fund — Established.

A petroleum tank release compensation fund is established.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-02. Definitions.

As used in this chapter, unless the context otherwise requires:

1. “Actually incurred” means, in the case of corrective action expenditures, the owner, operator, landowner, an insurer, or a contractor hired by the owner, operator, or the landlord has expended time and materials, and only that person is receiving reimbursement from the fund.
2. “Corrective action” means an action required by the department to minimize, contain, eliminate, remediate, mitigate, or clean up a release, including any remedial emergency measures. The term does not include the repair or replacement of equipment or preconstructed property.
3. “Dealer” means a person licensed by the tax commissioner to sell motor vehicle fuel or special fuels within the state.
4. “Department” means the department of environmental quality.
5. “Fund” means the petroleum release compensation fund.
6. “Location” means a physical address or site that has contiguous properties. Noncontiguous properties within a municipality or other governmental jurisdiction are considered separate locations.
7. “Operator” means a person in control of, or having responsibility for, the daily operation of a tank under this chapter.
8. “Owner” means a person who holds title to, controls, or possesses an interest in the tank before the discontinuation of its use.
9. “Petroleum” means any of the following:
   1. Gasoline and petroleum products as defined in chapter 23.1-13.
   2. Constituents of gasoline and fuel oil under subdivision a.
   3. Oil sludge and oil refuse.
10. “Portable tank” means a storage tank along with its piping and wiring that is not stationary or affixed, including a tank that is on skids.
11. “Release” means any unintentional spilling, leaking, emitting, discharging, escaping, leaching, or disposing of petroleum from a tank into the environment whether occurring before or after the effective date of this chapter, but does not include discharges or designed venting allowed under federal or state law or under adopted rules.
12. “Tank” means any one or a combination of containers, vessels, and enclosures, whether aboveground or underground, including associated piping or appurtenances used to contain an accumulation of petroleum. The term does not include:
    1. Tanks owned by the federal government.
    2. Tanks used for the transportation of petroleum.
    3. A pipeline facility, including gathering lines:
       1. Regulated under the Natural Gas Pipeline Safety Act of 1968.
       2. Regulated under the Hazardous Liquid Pipeline Safety Act of 1979.
       3. Regulated under state laws comparable to the provisions of law in paragraph 1 or 2, if the facility is an interstate pipeline facility.
    4. An underground farm or residential tank with a capacity of one thousand one hundred gallons [4163.94 liters] or less or an aboveground farm or residential tank of any capacity used for storing motor fuel for noncommercial purposes. However, the owner of an aboveground farm or residential tank may, upon application, register the tank and be eligible for reimbursement under this chapter.
    5. A tank used for storing heating oil for consumptive use on the premises where stored.
    6. A surface impoundment, pit, pond, or lagoon.
    7. A flowthrough process tank.
    8. A liquid trap or associated gathering lines directly related to oil or gas production or gathering operations.
    9. A storage tank 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.
    10. A tank used for the storage of propane.
    11. A tank used to fuel rail locomotives or surface coal mining equipment.
    12. An aboveground tank used to feed diesel fuel generators. Upon application, the owner or operator of an aboveground tank used to feed diesel fuel generators may register the tank and is eligible for reimbursement under this chapter.
    13. A portable tank.
    14. A tank with a capacity under one thousand three hundred twenty gallons [4996.728 liters] used to store lubricating oil.
13. “Tank integrity test” means a test to determine that a tank is sound and not leaking. For an underground tank, the term means a certified third-party test that meets environmental protection agency leak detection requirements. For an aboveground tank, the term means a test conducted according to steel tank institute SP 001 or American petroleum institute 653.
14. “Third party” means a person who is damaged by the act of a registered owner, operator, or dealer requiring corrective action, or a person who suffers bodily injury or property damage caused by a petroleum release.

“Board” means the petroleum release compensation board.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 8, effective July 1, 2019.

23.1-12-03. Petroleum release compensation board.

The petroleum release compensation advisory board shall review claims against the fund. The board consists of five members appointed by the governor, three of whom are active in petroleum marketing; one of whom is active in the petroleum, crude oil, or refining industry; and one of whom is active in the insurance industry. A member active in petroleum marketing must be appointed from a list of three recommended by the North Dakota retail petroleum marketers association. A member active in the petroleum, crude oil, or refining industry must be appointed from a list of three recommended by the North Dakota petroleum council. A member active in the insurance industry must be appointed from a list of three recommended by the North Dakota professional insurance agents association. Members must be appointed to terms of three years with the terms arranged so the term of at least one member, but no more than two members, expires June thirtieth of each year. A member shall hold office until a successor is duly appointed and qualified. Each member of the board is entitled to receive sixty-two dollars and fifty cents per diem for each day actually spent in the performance of official duties, plus mileage and expenses as allowed to other state officers.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-04. Administration of fund — Staff.

The department shall administer the fund according to this chapter. The department shall convene the board as may be necessary to keep the board apprised of the fund’s general operations. However, the board shall meet at least once each half of each calendar year to review and to advise the department regarding the administration of the fund, the fund’s general operations, and to hear and decide denials of claims by the department which may be appealed to the board, and to discuss all claims against the fund. The department may employ any assistance and staff necessary to administer the fund within the limits of legislative appropriation. A claimant aggrieved by a decision of the department regarding a claim upon the fund may appeal the decision to the board. The board may sustain, modify, or reverse the decision of the department. The claimant or the department may appeal the board’s decision under chapter 28-32.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 9, effective July 1, 2019.

23.1-12-05. Adoption of rules.

The department shall adopt rules regarding the practices and procedures of the fund, the form and procedure for applications for compensation from the fund, procedures for investigation of claims, procedures for determining the amount and type of costs that are eligible for reimbursement from the fund, procedures for persons to perform services for the fund, procedures for appeals to the board by claimants aggrieved by an adverse decision of the department, and any other rules as may be appropriate to administer this chapter.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 10, effective July 1, 2019.

23.1-12-06. Release discovery.

If the department has reason to believe a release has occurred, it shall direct the owner or operator to take reasonable and necessary corrective actions as provided under federal or state law or under adopted rules.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 11, effective July 1, 2019.

23.1-12-07. Owner or operator not identified.

The department may cause legal action to be brought to compel performance of a corrective action if an identified owner or operator fails or refuses to comply with an order of the department, or the department may engage the services of qualified contractors for performance of a corrective action if an owner or operator cannot be identified.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-08. Imminent hazard.

Upon receipt of information that a petroleum release has occurred which may present an imminent or substantial endangerment of health or the environment, the department may take emergency action necessary to protect health or the environment.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-09. Duty to notify.

This chapter does not limit a person’s duty to notify the department and to take action related to a release. However, payment for corrective actions required as a result of a petroleum release is governed by this chapter.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-10. Providing of information.

A person the department has reason to believe is an owner or operator, the owner of real property where corrective action is ordered to be taken, or a person that may have information concerning a release shall, if requested by the department, or any member, employee, or agent of the department, furnish to the department any information that person has or may reasonably obtain which is relevant to the release.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 12, effective July 1, 2019.

23.1-12-11. Examination of records.

Any employee of the department may, upon presentation of official credentials:

1. Examine and copy books, papers, records, memoranda, or data of any person that has a duty to provide information to the department under section 23.1-12-10; and
2. Enter upon public or private property to take action authorized by this section, including obtaining information from a person that has a duty to provide the information under section 23.1-12-10, conducting surveys and investigations, and taking corrective action.

Source: S.L. 2017, ch. 199, § 27; 2019, ch. 24, § 13, effective July 1, 2019.

23.1-12-12. Responsibility for cost.

The owner or operator is liable for the cost of the corrective action required by the department, including the cost of investigating the releases. This chapter does not create any new cause of action for damages on behalf of third parties for release of petroleum products against the fund or licensed dealers.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-13. Liability avoided.

An owner or operator may not avoid liability by means of a conveyance of any right, title, or interest in real property or by any indemnification, hold harmless agreement, or similar agreement. However, this chapter does not:

1. Prohibit a person that may be liable from entering an agreement by which the person is insured or is a member of a risk retention group, and is thereby indemnified for part or all of the liability;
2. Prohibit the enforcement of an insurance, hold harmless, or indemnification agreement; or
3. Bar a claim for relief brought by a person that may be liable or by an insurer or guarantor, whether by right of subrogation or otherwise.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-14. Other remedies.

This chapter does not limit the powers of the department, or preclude the pursuit of any other administrative, civil, injunctive, or criminal remedies by the department or any other person. Administrative remedies need not be exhausted to proceed under this chapter. The remedies provided by this chapter are in addition to those provided under existing statutory or common law.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 14, effective July 1, 2019.

23.1-12-15. Revenue to the fund.

Revenue from the following sources must be deposited in the state treasury and credited to the fund:

1. Any fees collected under section 23.1-12-17;
2. Any money recovered by the fund under section 23.1-12-23, and any money paid under an agreement, stipulation, or settlement;
3. Any interest attributable to investment of money in the fund; and
4. Any money received by the department in the form of gifts, grants, reimbursements, or appropriations from any source intended to be used for the purposes of the fund.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 15, effective July 1, 2019.

23.1-12-16. Penalty.

A tank owner violating section 23.1-12-17 is guilty of a class B misdemeanor unless another penalty is specifically provided.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-17. Registration fee.

1. Upon the recommendation and approval of the petroleum tank release compensation fund board, the department shall classify tanks with respect to degree of hazard, determine the risks of each classification, and fix the registration fee for each classification at a rate sufficient to provide for:
   1. The payment of the expenses of administration of the fund;
   2. The reimbursement for corrective action provided under this chapter; and
   3. The maintenance by the fund of adequate reserves and surplus so the fund may be kept solvent at all times.
2. The department shall establish the schedule of registration fees by rules adopted in accordance with chapter 28-32.
3. An owner or operator of an existing tank that is discovered at a location that currently and previously has had tanks registered with the fund shall pay an additional twenty-five dollar penalty fee in addition to the registration fee for each aboveground tank and each underground tank owned or operated by that person for each previous year that the tank was required to be registered for which a fee was not paid. The payment includes the fees and the penalty for the failure to register.
4. An owner or operator of an existing tank at a location that was not previously and continuously registered with the fund, whether the registration was required by law or not must provide the fund with a phase two environmental study conducted by a qualified firm according to American society for testing materials standards. A tank integrity test must also be performed. The environmental study and tank integrity test must be reviewed by the department along with the application for registration with the fund. If the department rejects the application, the applicant is denied eligibility to the fund. However, if the site is remediated and the leaking tank is replaced, the applicant may reapply for registration with the fund. A new installation that is using a used tank must provide tank integrity test results for the used tank. Use of a synthetic liner in an aboveground dike system negates the need for a tank integrity test. The owner or operator of a new tank at a new site or a new tank at an existing site that had a tank registered at the site previously need only pay the required fees for registration with the fund.
5. If accepted for registration with the fund, the owner or operator of the tank shall pay an additional twenty-five dollar penalty fee in addition to the registration fee for each aboveground tank and underground tank owned or operated by that person for each previous year that the tank was required to be registered for which a fee was not paid, regardless of ownership in each of those years. The payment includes the fees and the penalty for the failure to register.
6. The registration fees collected under this section must be paid to the department for deposit in the state treasury for the dedicated credit to the petroleum release compensation fund.
7. If a registration payment is not received within sixty days of July first by the department, a late fee of twenty-five dollars per tank per month must be imposed on the tank owner or operator.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 16, effective July 1, 2019.

23.1-12-17.1 Registration fees before adoption of rules. [Expired]

Source: S.L. 2019, ch. 24, § 17, effective August 1, 2019; expired by 2019, ch. 24, § 34, effective August 1, 2019.

23.1-12-18. Reimbursement for corrective action.

1. The department shall reimburse an eligible owner or operator for ninety percent of the costs of corrective action, including the investigation, which are greater than five thousand dollars and less than one million dollars per occurrence and two million dollars in the aggregate. An eligible tank owner or operator may not be liable for more than twenty thousand dollars out-of-pocket expenses for any one release. A reimbursement may not be made unless the department determines that:
   1. At the time the release was discovered the owner or operator and the tank were in compliance with state and federal rules and rules applicable to the tank, including rules relating to financial responsibility, rules relating to infrastructure compatibility, and all rules relating to health and safety which were in effect at the time of the release;
   2. The department was given notice of the release as required by federal and state law;
   3. The owner or operator has paid the first five thousand dollars of the cost of corrective action; and
   4. The owner or operator, to the extent possible, fully cooperated with the department in responding to the release.
2. The fund shall compensate third parties for corrective action taken for a petroleum release if the provisions of subdivisions a, b, c, and d of subsection 1 were met at the time the release was discovered. Compensation for third-party corrective action includes compensation for costs incurred in returning the real estate to that level deemed duly remediated by the department.
3. The fund shall reimburse the tank owner, operator, or dealer for bodily injuries to a third party caused by a petroleum release if the provisions of subdivisions a, b, c, and d of subsection 1 were met at the time the release was discovered in an amount determined by:
   1. Findings reduced to judgment in federal or state district court or such other court having jurisdiction over the matter in a proceeding in which the fund has been made a party;
   2. Findings by an arbitration panel agreed upon in writing by the parties in a proceeding in which the fund has been made a party; or
   3. A written settlement entered into by the parties in which the director of the department or the department’s agent has participated. The settlement must be reviewed and approved by the director of the department.
4. In any civil action against the owner, operator, or dealer for damages resulting from a petroleum release, if the pre-leak condition of real estate is an issue, and if there is no reasonable means of determining the pre-leak condition of real estate, the condition is that which exists at the time the department determines the real estate has been duly remediated.
5. The fund may not compensate for attorney’s fees of owners, operators, or dealers, nor may the fund compensate for exemplary damages, criminal fines, or administrative penalties.
6. A third party accepting monetary compensation directly from the fund for damages due to a release caused by a tank owner, operator, or dealer covered by the fund is deemed to have waived any cause of action against the fund or against the tank owner, operator, or dealer.
7. The fund shall reimburse the department for all costs, attorney’s fees, and other legal expenses relating to administrative and adjudicative proceedings under this chapter and any subsequent legal proceeding. Any moneys reimbursed must be deposited in the department’s operating fund in the state treasury and must be spent subject to appropriation by the legislative assembly.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 18, effective July 1, 2019.

23.1-12-19. Application for reimbursement.

An owner or operator that is a first-party claimant and that proposes to take corrective action or has undertaken corrective action in response to a release, the time of the release being unknown, may apply to the department for partial or full reimbursement under section 23.1-12-18. An owner or operator who is a first-party claimant may be reimbursed only for costs incurred after July 1, 1989, even if the releases were discovered before July 1, 1989, up to the maximum of twenty-five thousand dollars per location.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 19, effective July 1, 2019.

23.1-12-20. Department to determine costs.

A reimbursement for corrective actions taken by an owner, operator, or dealer may not be made from the fund until the department has determined that the costs for which reimbursement is requested were actually incurred and were reasonable. All necessary loss adjustment expenses must be included as a component of the loss and must be paid out of the fund.

Source: S.L. 2017, ch. 199, § 27, effective April 9, 2019; 2019, ch. 24, § 20, effective July 1, 2019.

23.1-12-21. Liability of responsible person.

The right to apply for reimbursement and the receipt of reimbursement does not limit the liability of an owner or operator for damages or costs incurred as the result of a release.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-22. Reimbursement not subject to attachment.

The amount of reimbursement to be paid for corrective action that was done by a third party is not subject to legal process or attachment if actually paid to a third party that performed the corrective action.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019.

23.1-12-23. Recovery of expenses.

Any reasonable and necessary expenses incurred by the fund, which exceed the coverage limits provided by section 23.1-12-18, in taking a corrective action, including costs of investigating a release, and in taking legal actions, may be recovered in a civil action in district court brought by the department against an owner or operator. The certification of expenses by an approved agent of the fund is prima facie evidence that the expenses are reasonable and necessary. Any expenses that are recovered under this section must be deposited in the fund.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 21, effective July 1, 2019.

23.1-12-24. Costs exceeding reimbursement.

If the cost of any extraordinary authorized action under this chapter exceeds amounts awarded to the department from the federal government, the department may pay the department’s corrective actions costs, including the cost of investigating a release, if the board finds that the cause was a petroleum substance, that an adequate amount exists in the fund to pay for the corrective action, that the occurrence was extraordinary in scope and size, and that a danger to the health and safety of citizens exists.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 22, effective July 1, 2019.

23.1-12-25. Coordination of benefits.

If an owner or operator has an insurance policy that provides the same coverage as the fund, the department shall pay the share of the covered loss or damage for which the fund is responsible. The share that must be paid from the fund is equal to the proportion that the applicable limit of coverage under the fund bears to the limits of insurance of all insurance coverage on the same basis.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 23, effective July 1, 2019.

23.1-12-26. Third-party damages — Participation in actions and review of settlements.

1. An owner or operator sued for damages resulting from a release shall notify the department within fourteen days of being served with a summons and complaint. The owner or operator also shall advise the department if any insurer is defending the owner or operator and provide to the department the name of that insurer.
2. An owner or operator that, before litigation, enters negotiations with a third party that claims to have been damaged by a release, or that receives a demand for payment of damages to a third party that claims to have been damaged by a release, shall notify the department within fourteen days of the demand or the negotiations.
3. The department and the board shall review the conduct of any litigation or negotiation. The department may not assume any legal costs incurred by the defendant or plaintiff, but may participate in discovery, trial proceedings, or settlement negotiations of either disputed liability or damages that bear on the determination of a plaintiff’s damages.
4. The department and the board shall review any settlement negotiations to determine the dollar amount of bodily injury or property damage actually, necessarily, and reasonably incurred by third parties which, if paid by the defendant, would be considered eligible costs.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 24, effective July 1, 2019.

23.1-12-27. Third-party damages — Documentation.

1. An applicant’s payments for third-party damages pursuant to a judgment entered in a court must include copies of the notice of entry of judgment and abstract of costs.
2. An applicant’s payments for third-party damages made by agreement in settlement of litigation must include copies of the settlement agreement and supporting documents required by the department.
3. An applicant’s payments for third-party damages made by agreement without reference to litigation must include copies of the settlement and supporting documents required by the department.
4. The department and the board may require a third party who claims bodily injury to be examined by a physician and require that the physician’s report to be submitted to the department. The department may require a third party that claims property damage to permit a property appraiser or claims adjuster retained by the department to inspect the property and report to the department.
5. The fund shall pay a judgment against an owner, operator, or dealer awarded to a third party as a result of a third-party claim and property damage against an owner, operator, or dealer registered by the fund.
6. The fund shall pay for corrective action as awarded to a third party in any judgment against an owner, operator, or dealer.
7. Liability of the tank owner, operator, dealer, or fund to third parties for corrective action or personal injuries and property damage may not exceed, per person, one million dollars. Maximum liability of the fund, including all claims by third parties, may not exceed, for any release site, the maximum provided in section 23.1-12-18.
8. A third party may not bring an action against an owner, operator, or dealer more than three years after a corrective action plan has been approved by the department if the owner, operator, or dealer fully implements and complies with the corrective action plan.
9. In investigating a release site or reviewing the implementation of a corrective action plan approved by the department, the department shall determine whether the release threatens public health or the environment. The department shall require, based on science and technology appropriate for the site, any monitoring, remediation, or other appropriate corrective action that is reasonably necessary to protect public health or the environment. The department may require corrective action at a release site at any time after a release occurs.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 25, effective July 1, 2019.

23.1-12-28. Matching federal funds.

The department and the board may annually allow the department a ten percent matching grant for federal leaking underground storage tank funds to be paid out of the fund if the moneys are available and the department and the board determine the allowance appropriate.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 26, effective July 1, 2019.

23.1-12-29. Fund appropriations.

Money in the fund is continuously appropriated to the department for the purpose of making reimbursements under this chapter.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 27, effective July 1, 2019.

23.1-12-30. Investment of fund.

Investment of the fund is under the supervision of the state investment board in accordance with chapter 21-10. The department may purchase a contract for reinsurance of any risk to be paid by the fund. The department may investigate the purchase of insurance that reimburses an owner or operator for property damage claims by third parties other than claims for costs of corrective action.

Source: S.L. 2017, ch. 199, § 27, effective April 29, 2019; 2019, ch. 24, § 28, effective July 1, 2019.

23.1-13-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1. “Adulterated”, when used to describe any petroleum or alternative fuel product, means a petroleum or alternative fuel product that fails to meet the specifications prescribed by this chapter.
2. “Alternative fuel” means a fuel for an engine or vehicle, or used as heating oil, other than a petroleum-based fuel. The term includes biodiesel and green diesel as defined in section 57-43.2-01.
3. “Department” means the department of environmental quality.
4. “Diesel fuel” means any petroleum product intended for use or offered for sale as a fuel for engines in which the fuel is injected into the combustion chamber and ignited by pressure without electric spark.
5. “Gasoline” means a refined petroleum naphtha which by its composition is suitable for use as a carburant in internal combustion engines.
6. “Heating oil” means any product intended for use or offered for sale as a furnace oil, range oil, or fuel oil for heating and cooking purposes to be used in burners other than wick burners regardless of whether the product is designated as furnace oil, range oil, fuel oil, gas oil, or is given any other name or designation.
7. “Kerosene” means a petroleum fraction which is free from water, additives, foreign or suspended matter, and is suitable for use as an illuminating oil.
8. “Lubricating oil” means any petroleum, or other product, used for the purpose of reducing friction, heat, or wear in automobiles, tractors, gasoline engines, diesel engines, and other machines.
9. “Misbranded”, when used in connection with any petroleum or alternative fuel product, means a petroleum or alternative fuel product that is not labeled as required under the provisions of this chapter.
10. “Sell” and “sale” include the keeping, offering, or exposing for sale, transportation, or exchange of the restricted or prohibited article.
11. “Tractor fuel” means any product, other than gasoline or kerosene, intended for use or offered for sale as a fuel for tractors, regardless of whether the product is designated as distillate, gas oil, fuel oil, or is given any other name or designation.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-02. Department to enforce law — Regulation of petroleum products.

This chapter must be enforced by the department. The department may adopt rules under chapter 28-32 for the interpretation of this chapter.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-03. Sale of adulterated and misbranded gasoline, kerosene, tractor fuel, heating oil, diesel fuel, or lubricating oil prohibited.

A person may not sell or offer or expose for sale any kerosene, gasoline, or other petroleum product intended to be used as kerosene, gasoline, any tractor fuel, heating oil, diesel fuel, or lubricating oil that is adulterated or misbranded.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-04. Retail sale of alcohol-blended gasoline — Label requirements.

A dealer may not sell at retail alcohol-blended gasoline unless the dispensing unit and any price advertising bear the name of the alcohol blended with the gasoline if the alcohol-blended gasoline consists of one percent or more by volume of any alcohol. The disclosure must be in letters at least the same size as those used for the label of the basic grade of gasoline and must be next to the gasoline grade label. A producer of alcohol-blended gasoline may provide a retailer with a label promoting the benefits of alcohol-blended gasoline, if the label at least meets the requirements of this section.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-05. Retail sale of gasoline containing methyl tertiary butyl ether — Restriction.

A person may not sell, offer for sale, supply, or offer for supply gasoline that contains methyl tertiary butyl ether in quantities greater than five-tenths of one percent by volume. However, a person may ship gasoline containing methyl tertiary butyl ether within the state for disposition outside the state, including storage coincident to shipment.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-06. Retail sale of alternative fuels — Notice required.

A dealer may not sell at retail alternative fuel unless the dispensing unit and price advertising contains the name and main components of the alternative fuel or alternative fuel blend. The disclosure must follow the same labeling specifications that apply for petroleum-based fuels. The department shall adopt rules under chapter 28-32 for labeling of petroleum products and alternative fuels. A producer of alternative fuels or alternative fuel blends may provide a retailer with a label promoting the benefits of the alternative fuel if the label meets the requirements of this section.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-07. Labeling gasoline containers — Gasoline pipeline.

Every package, barrel, filling station pump, and every tank wagon, truck, or car containing gasoline for sale or consignment or held with intent to sell or consign the same within this state or to transport it into this state must be clearly and distinctly stamped, labeled, or tagged with the word “gasoline”. Every oil station pipeline for gasoline must be painted red. The fittings upon such lines; however, may be painted other colors to designate grades. Pipelines for gasoline must be entirely separate from lines for kerosene or for any other high flash product. Every can, bucket, barrel, or other container of less than sixty gallons [227.12 liters] capacity used for storage or delivery of gasoline, benzine, or benzine products, unless the same is made of glass, must be painted bright red, and such containers may not be used for the storage or delivery of kerosene. In the case of glass containers, the contents must be designated by a red label securely pasted on or attached to the containers bearing the name of the product.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-08. Labeling kerosene — Containers — Pipeline.

Every package, barrel, filling station pump, and every tank wagon, truck, or car containing kerosene for sale or consignment when held within this state or transported into this state must be clearly and distinctly stamped, labeled, or tagged with the word “kerosene”. Every oil station pipeline for kerosene must be painted aluminum and must be entirely separate from lines for gasoline or other low flash products.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-09. Labeling tractor fuel.

Every package, barrel, pump, and every truck, tank wagon, or car containing tractor fuel oil, other than gasoline or kerosene, for sale or consignment, when held within this state or when being transported into this state must be clearly and distinctly tagged, marked, and labeled with the legend “Tractor fuel oil, not for illuminating purposes nor wick burners”. Every oil station pipeline for tractor fuel must be painted yellow and must be entirely separate from lines for kerosene or other high flash product.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-10. Labeling heating oil.

Every package, barrel, pump, and every tank wagon, truck, or car containing heating oil for sale or consignment, when held within this state or when being transported into this state, must be clearly and distinctly tagged, marked, or labeled with the designation of grade established by the department. Every oil station pipeline for heating oil must be painted green.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-11. Labeling diesel fuel.

Every package, barrel, pump, and every tank wagon, truck, or car containing diesel fuel for sale or consignment, when held within this state or transported into this state, must be clearly and distinctly tagged, marked, or labeled with the designation “diesel fuel” together with its cetane number and the grade established by the department. Every oil station pipeline for diesel fuel must be painted green.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-12. Specifications for petroleum products — Tests used.

Specifications for gasoline, kerosene, tractor fuel, diesel oil, heating oil, lubricating oil, alternative fuels, and liquefied petroleum gases, including propane, propylene, normal butane or isobutane, and butylene, must be determined by the department and must be based upon nationally recognized standards. When so determined by the department and adopted and promulgated as regulations and orders of the department in accordance with chapter 28-32, such specifications must be the specifications for such petroleum products sold in this state and official tests of such petroleum products must be based upon test specifications so determined adopted and promulgated.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-13. How volume of heating oil determined.

In case of a dispute, heating oil must be sold on the basis of the United States gallon containing two hundred thirty-one cubic inches [3785.41 milliliters] at sixty degrees Fahrenheit [15.56 degrees Celsius]. The volume of the delivered oil; however, may be calculated from its weight and gravity degrees API in accordance with the national standard petroleum oil tables prepared by the national bureau of standards.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-14. Department may prohibit sale of certain gasolines or motor fuels.

The department may prohibit the sale of any “gasoline improver” or motor fuel dope, oil additive, and of any gasoline mixed or compounded with any other chemical, substance, or solution which may be detrimental to the public health, injurious to internal combustion engines, or concerning which unsubstantiated claims are made. However, it may not prohibit the sale of any material, substance, or solution that has been favorably reported on by the United States bureau of standards or by the surgeon general or bureau of public health of the United States.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-15. Sale of prohibited gasolines — Penalty.

Any person violating any of the provisions of section 23.1-13-14 is guilty of a class B misdemeanor.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-16. Inspection fees.

Every person licensed by the tax commissioner as a motor vehicle fuel or special fuels dealer shall pay to the tax commissioner an inspection fee of one-fortieth of one cent per gallon [3.79 liters] for every gallon [3.79 liters] of gasoline, kerosene, tractor fuel, heating oil, or diesel fuel sold or used during a calendar month except those gallons sold out of state or those gallons sold as original package sales as defined in chapters 57-43.1 and 57-43.2. The fee must accompany the monthly report required in the following section and is due no later than the twenty-fifth day of each calendar month for the preceding month. The tax commissioner shall forward all money collected under this section to the state treasurer monthly, and the state treasurer shall place the money in the general fund of the state. The tax commissioner shall make available annually a report by licensed dealer listing the number of gallons [liters] of motor vehicle fuel and special fuels upon which the inspection fee has been paid. The provisions of chapters 57-43.1 and 57-43.2 pertaining to the administration of motor vehicle fuel and special fuels taxes not in conflict with the provisions of this chapter govern the administration of the inspection fee levied by this chapter.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-17. Report to tax commissioner of petroleum products — Contents.

No later than the twenty-fifth day of each calendar month, every person licensed by the tax commissioner as a motor vehicle fuel, special fuels, or liquefied petroleum wholesale dealer shall send to the tax commissioner a correct report of all purchases and sales of gasoline, kerosene, tractor fuel, heating oil, or diesel fuel during the preceding month. The report must include the same information as required in chapters 57-43.1 and 57-43.2 for motor vehicle fuel and special fuels tax collection purposes. Failure to send the report and inspection fee required by the preceding section to the tax commissioner constitutes a violation of the provisions of this chapter.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-18. Bond may be required of dealer in petroleum products.

The tax commissioner may require any person licensed by the tax commissioner as a motor vehicle fuel, special fuels, or liquefied petroleum wholesale dealer to furnish a surety bond payable to the state in the sum of five hundred dollars, or twice the amount of inspection fees due for any calendar month, whichever amount is the greater, guaranteeing to the state true reports of purchases and sales of gasoline, kerosene, tractor fuel, heating oil, and diesel fuel and the payment of all inspection fees provided for in this chapter. The tax commissioner shall determine the sufficiency of the bond. A single bond may cover dealing in one or all of the petroleum products mentioned in this chapter. When any inspection fee is not paid within twenty days after it has become delinquent, the person bonding the delinquent may be called upon to make good upon the bond for such delinquent fees.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-19. Department may designate ports of entry and hold cars for inspection — Penalty.

The department may designate ports of entry of all transportation companies carrying petroleum products into this state for sale or consignment and may hold or delay any car or other vehicle of transportation entering this state carrying such products for sale or consignment until samples thereof have been obtained for inspection and analysis and until any other required information regarding the products contained in the shipment has been secured. The department may not hold or delay any shipment or consignment of petroleum products at the port of entry if the transportation company carrying such products will permit proper inspection and sampling of shipments or consignments at convenient designated points without the state, and will permit the inspection of transportation records and provide adequate information regarding the records of cars or other vehicles carrying such products at division points or at other places within or without the state where such cars or other vehicles, in normal practice, are stopped and held for switching and rearrangement or where ample opportunity is provided for proper inspection and sampling. The failure on the part of a transportation company or any of its officers or employees to hold any car or other vehicle of transportation for inspection is a class B misdemeanor.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-13-20. Penalties.

A person violating or failing to comply with any of the provisions of this chapter, or with any rule issued under this chapter, is, unless another penalty is specifically provided, guilty of a class B misdemeanor.

Source: S.L. 2017, ch. 199, § 28, effective April 29, 2019.

23.1-14-01. Administration.

The department of environmental quality shall administer this chapter.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-02. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1. “Antifreeze” means any substance or preparation sold, distributed, or intended for use as the cooling liquid, or to be added to the cooling liquid, in the cooling system of internal combustion engines to prevent freezing of the cooling liquid, to lower its freezing point, or to raise its boiling point.
2. “Department” means the department of environmental quality.
3. “Distribute” means to hold with intent to sell to the consumer, offer for sale, to sell, barter, or otherwise supply.
4. “Label” means any display of written, printed, or graphic matter on, or attached to, a package or the outside individual container or wrapper of the package.
5. “Package” means a sealed retail package, drum, or other container in which antifreeze is distributed to the consumer or a container holding no more than fifty-five gallons [208.20 liters] from which the antifreeze is directly installed in the cooling system by seller or reseller.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-03. Registration — Penalty.

Before antifreeze may be distributed in this state, the manufacturer or person whose name appears on the label shall apply to the department on forms provided by the department for registration for each antifreeze the manufacturer or person whose name appears on the label desires to distribute. All registrations expire on June thirtieth of each year. The application for registration must be accompanied by an inspection fee of forty dollars for each product, and by a label or other printed matter describing the product. Upon approval by the department, a copy of the registration must be furnished to the applicant. The department shall remit inspection fees received by the department to the state treasurer for deposit in the state general fund. A penalty of fifty percent of the registration fee must be imposed if the certificate of registration is not applied for on or before July first of each year or within the same month such antifreeze is first manufactured or sold within this state.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-04. Adulteration.

Antifreeze is adulterated:

1. If, in the form in which it is sold and directed to be used, it would be injurious to the cooling system of an internal combustion engine, or if, when used in the cooling system of such an engine, it would make the operation of the engine dangerous to the user; or
2. If its strength, quality, or purity falls below the standard of strength, quality, or purity under which it is sold or offered for sale.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-05. Misbranding.

Antifreeze is misbranded:

1. If it does not bear a label which specifically identifies the product, states the name and place of business of the registrant, states the net quantity of contents in terms of liquid measure separately and accurately in a uniform location under the principal display panel, and contains a statement warning of any hazard of substantial injury to human beings which may result from the intended use or reasonably foreseeable misuse of the antifreeze;
2. If the product is to be diluted with another substance for use and its labeling does not contain a statement or chart showing appropriate amounts of each substance to be used to provide protection from freezing at various degrees of temperature;
3. If the labeling contains a corrosion protection claim and does not include a statement of the amount to be used to provide such protection;
4. If its labeling contains any claim that it has been approved or recommended by the department; or
5. If its labeling is false, deceptive, misleading, or is illegal under any law.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-06. Rules and regulations.

The department may adopt reasonable rules and standards under chapter 28-32 as necessary to administer this chapter.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-07. Inspection, sampling, and analysis.

The department may, at reasonable hours, enter, inspect, and examine all places and property where antifreeze is stored or distributed for the purpose of taking reasonable samples of antifreeze for analysis together with specimens of labeling. The department shall examine promptly all samples received in connection with the administration and enforcement of this chapter and report the results to the owner and the registrant of the antifreeze.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-08. Prohibited acts.

It is unlawful to:

1. Distribute any antifreeze that has not been registered under this chapter or for which the label is different from that accepted for registration.
2. Distribute any antifreeze that is adulterated or misbranded.
3. Refuse to permit entry or inspection or refuse to permit the acquisition of a sample of any antifreeze under this chapter.
4. Dispose of any antifreeze under “withdrawal from distribution” order under this chapter, except as provided in this chapter.
5. Distribute any antifreeze unless it is in the registrant’s or manufacturer’s package, except a distributor may obtain written authorization from the department annually to distribute antifreeze in bulk using a container supplied by the customer, provided the distributor attaches to the container a label bearing all of the information required by this chapter.
6. Use the term “ethylene glycol” on the label of a product which contains other glycols unless it is qualified by the word “base”, “type”, or wording of similar import and unless the product contains a minimum ethylene glycol content of seventy-five percent by regulation weight and a minimum total glycol content of ninety-three percent by weight. The product also must have a corrected specific gravity to give reliable freezing point readings on a commercial ethylene glycol type hydrometer and a freezing point, when mixed with an equal volume of water, of thirty-two degrees Fahrenheit [35.56 degrees Celsius] below zero or lower.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-09. Enforcement.

When the department finds any antifreeze being distributed in violation of this chapter or any rules adopted under this chapter, it may issue and enforce a written or printed “withdrawal from distribution” order, warning the distributor not to dispose of any of the lot of antifreeze in any manner until written permission is given by the department or a court of competent jurisdiction. Copies of the order must also be sent by registered or certified mail to the registrant or to the person whose name and address appear on the label of the antifreeze. The department shall release for distribution the lot of antifreeze so withdrawn upon compliance with applicable rules, or for return to the registrant or the person whose name and address appears on the label for reprocessing or relabeling as may be required. If compliance is not obtained within thirty days, the department may begin proceedings for condemnation. Any lot of antifreeze not in compliance with the law is subject to seizure upon complaint of the department in the district court of the county in which it is located or in the district court of Burleigh County.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-10. Submission of formula.

The department may require an applicant for registration to furnish a statement of the formula of the applicant’s antifreeze, unless the applicant can furnish other satisfactory evidence that the antifreeze is not adulterated or misbranded. The statement need not include inhibitor or other ingredients that total less than five percent by weight of the antifreeze. All statements of formula and other trade secrets furnished under this section are privileged and confidential and may not be made public or open to the inspection of any persons other than the department. No statement is subject to subpoena. Nor may a statement be exhibited or disclosed before any administrative or judicial tribunal by virtue of any order or subpoena of such tribunal without the consent of the applicant furnishing the statement to the department.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-11. Penalty.

Any person that violates or fails to comply with this chapter, for which another penalty has not been specifically provided, is guilty of a class B misdemeanor.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-12. Prosecutions — State’s attorney.

Each state’s attorney to whom the department reports any violation of this chapter shall institute appropriate proceedings in court without delay. However, nothing in this chapter may be construed as requiring the department to report minor violations for the institution of proceedings under this chapter whenever it believes the public interest will be served adequately by suitable written notice or warning.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-13. Injunction proceedings.

In addition to other remedies, the department may apply to the district court of Burleigh County for a temporary or permanent injunction restraining any person from violating a provision of this chapter regardless of whether there exists an adequate remedy at law, and appropriate costs must be taxed by the court for all expenses to the department for the injunctive proceedings.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-14-14. Reports by department.

Except as otherwise provided, the department may publish reports of any analyses, inspections, or research done under this chapter for the information of the public.

Source: S.L. 2017, ch. 199, § 29, effective April 29, 2019.

23.1-15-01. Definitions.

For purposes of this chapter, unless the context otherwise requires:

1. “Abandoned motor vehicle” means a motor vehicle, as defined in section 39-01-01, that has remained for a period of more than forty-eight hours on public property illegally or lacking vital component parts, or is located on private property without consent of the person in control of the property or in an inoperable condition such that it has no substantial potential further use consistent with its usual functions, unless it is kept in an enclosed garage or storage building. It also means a motor vehicle voluntarily surrendered by its owner to a person duly licensed under section 23.1-15-09. An antique automobile, as defined in section 39-04-10.4, and other motor vehicles to include parts car and special interest vehicles, may not be considered an abandoned motor vehicle within the meaning of this chapter.
2. “Collector” means the owner of one or more special interest vehicles that collects, purchases, acquires, trades, or disposes of special interest vehicles or parts of special interest vehicles for the person’s own use in order to restore, preserve, and maintain a special interest vehicle or antique vehicle.
3. “Commercial towing service” means a registered business in North Dakota that tows motor vehicles.
4. “Department” means the department of environmental quality.
5. “Emergency towing” means the towing of a vehicle due to a motor vehicle accident, mechanical breakdown on public roadway, or other emergency-related incident necessitating vehicle removal for public safety with or without the owner’s consent.
6. “Parts car” means a motor vehicle generally in nonoperable condition which is owned by the collector to furnish parts to restore, preserve, and maintain a special interest vehicle or antique vehicle.
7. “Special interest vehicle” means a motor vehicle that is at least twenty years old and has not been altered or modified from original manufacturer’s specifications and, because of its historic interest, is being preserved by hobbyists.
8. “Unit of government” includes a state department or agency, a county, city, township, or other political subdivision.
9. “Vital component parts” means those parts of a motor vehicle that are essential to the mechanical functioning of the vehicle, including, but not limited to, the motor, drive train, and wheels.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019; 2019, ch. 221, § 1, effective March 27, 2019.

23.1-15-02. Penalty for abandoning a motor vehicle.

Any person that abandons a motor vehicle on any public or private property, without the consent of the person in control of the property, is guilty of a class A misdemeanor.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019.

23.1-15-03. Custody of abandoned vehicle.

Units of government may take into custody and impound an abandoned motor vehicle. If requested by an owner, lessee, tenant, or occupant of private property, a commercial towing service may remove and take into custody an abandoned motor vehicle located on the private property.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019; 2019, ch. 221, § 2, effective March 27, 2019.

23.1-15-04. Conditions under which an abandoned vehicle may be sold immediately.

When an abandoned motor vehicle is more than seven model years of age, is lacking vital component parts, and does not display a license plate currently valid in North Dakota or any other state or foreign country, it is immediately eligible for disposition and must be disposed of to a scrap iron processor licensed under section 23.1-15-09, and is not subject to the notification, reclamation, or title provisions of this chapter. Any license plate displayed on an abandoned vehicle must be removed and destroyed prior to the purchaser taking possession of the vehicle.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019.

23.1-15-05. Notice to owner and law enforcement of abandoned vehicle.

1. When an abandoned motor vehicle does not fall within the provisions of section 23.1-15-04, the unit of government or commercial towing service taking it into custody shall give notice of the taking within ten days. The notice must set forth the date and place of the taking, the year, make, model, and serial number of the abandoned motor vehicle, and the place where the vehicle is being held, must inform the owner and any lienholders or secured parties of their right to reclaim the vehicle under section 23.1-15-06, must state that failure of the owner, lienholders, or secured parties to exercise their right to reclaim the vehicle within thirty days is deemed a waiver by the owner, lienholders, or secured parties of all right, title, and interest in the vehicle and a consent to the disposal of the vehicle pursuant to section 23.1-15-07, and must state the end date of the thirty-day period during which the owner may reclaim the abandoned vehicle.
2. The notice must be sent by certified mail, return receipt requested, to the registered owner, if any, of the abandoned motor vehicle and to all readily identifiable lienholders or secured parties of record. If it is impossible to determine with reasonable certainty the identity and address of the registered owner and all lienholders, the notice must be published once in a newspaper of general circulation in the area where the motor vehicle was abandoned or placed on the official website for the unit of government that initiated the impound process from public property. When posted on a website, the notice must be placed in a designated area on the official website for a minimum of thirty days and must include the information in subsection 1. Published notices may be grouped together for convenience and economy. Failure of the owner, lienholders, or secured parties to exercise the right to reclaim the vehicle by the end of the public notice period is deemed a waiver by the owner, lienholders, or secured parties of all right, title, and interests in the vehicle and a consent to the disposal of the vehicle pursuant to section 23.1-15-07.
3. Subject to section 23.1-15-04, a commercial towing service that takes an abandoned motor vehicle into custody shall provide notice to the law enforcement agency having jurisdiction in the location from which the motor vehicle was towed within twelve hours after completing the tow.
4. Notice under subsection 3 must include:
   1. The license plate number and state of registration;
   2. The location from which the motor vehicle was towed;
   3. The location to which the motor vehicle was towed;
   4. The name, address, and telephone number of the commercial towing service that towed and is storing the motor vehicle; and
   5. A description of the motor vehicle, including make, model, year, and color.
5. A commercial towing service that violates subsection 3 may not collect a storage fee under section 23.1-15-06 and shall return the motor vehicle to the registered owner at no cost to the owner.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019; 2019, ch. 221, § 3, effective March 27, 2019; 2021, ch. 213, § 1, effective August 1, 2021.

23.1-15-06. Right of owner to reclaim abandoned vehicle.

1. The owner, secured parties, or a lienholder of an abandoned motor vehicle has a right to reclaim such vehicle from the unit of government taking the motor vehicle into custody upon payment of all towing and storage charges resulting from taking the vehicle into custody within thirty days after the date of the notice required by section 23.1-15-05.
2. The owner, secured parties, or a lienholder of an abandoned motor vehicle, within thirty days after receipt of the notice required by section 23.1-15-05, has a right to reclaim the vehicle from a commercial towing service taking the motor vehicle into custody upon payment of all towing and storage charges resulting from taking the vehicle into custody.
3. Storage charges under subsection 2 may not exceed fifty dollars per day for an abandoned passenger vehicle, pickup, van, or truck that does not exceed twenty thousand registered gross weight pounds [9071.85 kilograms].
4. Nothing in this chapter may be construed to impair any lien of a garagekeeper under the laws of this state or the right of a lienholder or secured parties to foreclose. For the purposes of this section, “garagekeeper” is an operator of a parking place or establishment, an operator of a motor vehicle storage facility, or an operator of an establishment for the servicing, repair, or maintenance of motor vehicles.
5. This section also applies to emergency towing.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019; 2019, ch. 221, § 4, effective March 27, 2019.

23.1-15-07. Disposal of vehicle — Disposition of proceeds.

1. An abandoned motor vehicle not more than seven model years of age taken into custody by a unit of government and not reclaimed under section 23.1-15-06 must be sold to the highest bidder at public auction or sale, following reasonable published notice. The purchaser must be given a receipt in a form prescribed by the department of transportation which is sufficient title to dispose of the vehicle. The receipt also entitles the purchaser to register the vehicle and receive a certificate of title, free and clear of all liens and claims of ownership. The license plates displayed on an abandoned vehicle must be removed and destroyed prior to the purchaser taking possession of the vehicle.
2. If a commercial towing service takes custody of an abandoned motor vehicle and the vehicle is not reclaimed under section 23.1-15-06, the commercial towing service may obtain a release from the department of transportation which is sufficient title to dispose of the vehicle. The release entitles the commercial towing service to register the vehicle and receive a certificate of title, free and clear of all liens and claims of ownership. The license plates displayed on the abandoned vehicle must be removed and destroyed upon receipt of the new title.
3. From the proceeds of the sale of an abandoned motor vehicle, the unit of government or the commercial towing service may reimburse itself for the cost of towing, preserving, and storing the vehicle, and for all notice and publication costs incurred under this chapter. Any remainder from the proceeds of a sale must be held for the owner of the vehicle or entitled lienholder or secured parties for ninety days and then must be delivered to the administrator of the state abandoned property office in accordance with chapter 47-30.2.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019; 2019, ch. 221, § 5, effective March 27, 2019; 2021, ch. 213, § 2, effective August 1, 2021; 2021, ch. 337, § 5, effective July 1, 2021.

Note.

Section 23.1-15-07 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 5 of Chapter 337, Session Laws 2021, Senate Bill 2048; and Section 2 of Chapter 213, Session Laws 2021, Senate Bill 2098.

23.1-15-08. Disposal of vehicles not sold.

When no bid has been received for an abandoned motor vehicle, the unit of government or a commercial towing service that is a licensed scrap iron processor may dispose of it pursuant to contract under section 23.1-15-09.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019; 2021, ch. 213, § 3, effective August 1, 2021.

23.1-15-09. Contracts for disposal — Issuance of licenses by department of environmental quality — Reimbursement of units of government and commercial towing services for costs.

1. A unit of government may contract with any qualified licensed scrap iron processor for collection, storage, incineration, volume reduction, transportation, or other services necessary to prepare abandoned motor vehicles and other scrap metal for recycling or other methods of disposal. The contract may authorize the contracting scrap iron processor to pay to the owner of any abandoned motor vehicle an incentive payment for vehicle if it is voluntarily surrendered and delivered to the scrap iron processor. For purposes of this section, an owner of an abandoned motor vehicle includes only a person that has owned and operated the vehicle for the person’s personal or business use.
2. The department may issue a license to any qualified scrap iron processor desiring to participate in a contract under this section which meets the requirements for solid waste disposers established by the department.
3. Before a unit of government enters a contract with a scrap iron processor duly licensed by the department, the department may review the contract to determine whether it conforms to the department’s plan for solid waste disposal. A contract that does conform may be approved by the department. When a contract has been approved, the department may reimburse the unit of government for the costs incurred under the contract, including incentive payments authorized and made under the contract, subject to the limitations of legislative appropriations.
4. Before a commercial towing service that is a scrap iron processor duly licensed by the department enters a contract with the department, the department may review the contract to determine whether it conforms to the department’s plan for solid waste disposal. A contract that does conform may be approved by the department. When a contract has been approved, the department may reimburse the commercial towing service for the costs incurred under the contract for towing and up to thirty days of storage charges resulting from taking an abandoned motor vehicle into custody, subject to the limitations of legislative appropriations.
5. The department may demand that a unit of government or a commercial towing service that is a licensed scrap iron processor contract for the disposal of abandoned motor vehicles and other scrap metal under the department’s plan for solid waste disposal. When the unit of government or the commercial towing service fails to contract within one hundred eighty days of the demand, the department, on behalf of the unit of government, may contract with any scrap iron processor duly licensed by the department for such disposal.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019; 2021, ch. 213, § 4, effective August 1, 2021.

23.1-15-10. Abandoned motor vehicle disposal fund.

The abandoned motor vehicle disposal fund is established in the state treasury. All moneys derived from the investment of the fund are to be credited to the fund.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019.

23.1-15-11. Tax on initial motor vehicle certificates of title.

A tax of one dollar and fifty cents is imposed on each initial North Dakota certificate of title issued to a passenger motor vehicle or a truck motor vehicle. The proceeds of the tax must be paid into the abandoned motor vehicle disposal fund. No registration plates or title certificate may be issued unless the tax is paid. Expenses of the fund arising under this chapter must be paid from the fund within the limits of legislative appropriation. If, on the first day of July in any year, the amount of uncommitted money in the abandoned motor vehicle disposal fund is two hundred fifty thousand dollars or more, the amount in excess of two hundred fifty thousand dollars must be transferred to the highway fund.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019.

23.1-15-12. Storage of vehicles by collector — Limitations.

A collector may store unlicensed, operable or inoperable, vehicles and parts cars on the collector’s property provided the vehicles and parts cars and the outdoor storage area are maintained so they do not constitute a health hazard and are screened from ordinary public view by means of a fence, trees, shrubbery, or other appropriate means.

Source: S.L. 2017, ch. 199, § 30, effective April 29, 2019.

23.1-16-01. Definitions.

As used in this chapter, unless the context otherwise requires:

1. “Boiler” means a closed vessel in which water is heated, steam is generated, steam is superheated, or any combination thereof, under pressure or vacuum for use externally to the boiler by the direct application of heat from the combustion of fuels, or from electricity or nuclear energy. The term includes fired units for vaporizing liquids other than water when these units are separate from processing systems and are complete within themselves.
2. “Department” means the department of environmental quality.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-02. Chief boiler inspector, deputy inspectors — Appointment — Jurisdiction.

The department shall employ a chief boiler inspector and deputy inspectors. The chief boiler inspector has jurisdiction over all boilers in this state except as otherwise provided.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-03. Qualifications of chief boiler inspector — Deputy inspectors.

1. An individual is not eligible to the office of chief boiler inspector unless that individual:
   1. Has had at the time of the appointment at least five years’ experience in the construction, inspection, operation, maintenance, or repair of high-pressure boilers and pressure vessels as a mechanical engineer, boilermaker, steam operating engineer, or boiler inspector. An applicant possessing a mechanical engineering degree from an accredited school may substitute that degree for two years of the five years’ experience, at the discretion of the department.
   2. Holds a commission issued by the national board of boiler and pressure vessel inspectors or obtains the commission within one year after the date of appointment by the department.
   3. Is not directly or indirectly interested in the manufacture or sale of boilers or steam machinery or articles used in the construction or maintenance of engines or boilers.
2. The department shall establish qualifications for a deputy inspector which are not inconsistent with the requirements of the position.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-04. Powers and duties of chief boiler inspector.

1. The chief boiler inspector shall:
   1. Keep a complete record of the type, dimensions, maximum allowable working pressure, age, condition, location, and date of the last-recorded internal and external inspection of boilers to which this chapter applies.
   2. Cooperate and assist in loss prevention programs sponsored by the department.
2. The chief boiler inspector may delegate powers and duties to any deputy inspector or special inspector.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-05. General requirement.

Every boiler in this state must be constructed, installed, and maintained according to rules adopted to implement this chapter.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-06. Exempt boilers — Inspection of exempt boilers.

This chapter does not apply to:

1. Any boiler subject to federal inspection or under federal control.
2. Any boiler located on a farm and used solely for agricultural purposes.
3. Any heating boiler located in a private residence or in an apartment house of less than six family units.
4. Any hot water supply boiler not exceeding the following limitations:
   1. Input of two hundred thousand British thermal units per hour.
   2. Pressure of one hundred sixty pounds per square inch [1103.16 kilopascals] gauge.
   3. Temperature of two hundred fifty degrees Fahrenheit [121.11 degrees Celsius].
5. Any portable steam cleaner commonly used in a garage.
6. Any boiler of a miniature model locomotive, boat, tractor, or stationary engine design constructed as a hobby, not for commercial use, having an inside diameter not exceeding ten inches [25.4 centimeters] and a grate area not exceeding one and one-half square feet [1393.54 square centimeters] and which is properly equipped with a safety valve, water level indicator, and pressure gauge.
7. Any electric boiler used as an integral part of an espresso coffee machine, provided that the boiler does not exceed one and one-half cubic feet [.0566 cubic meter] in water capacity, does not exceed fifty pounds per square inch [344.74 kilopascals] pressure, and is constructed, approved, or certified to the American society of mechanical engineers code or to other national or international standards.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-07. Inspection of boilers.

1. The chief boiler inspector shall inspect each boiler used or proposed to be used within this state. The inspection must be thorough as to the construction, installation, condition, and operation as provided by the rules adopted to implement this chapter. An exempt boiler may be inspected by the chief boiler inspector when the owner, the owner’s agent, or the user of the boiler makes written request for inspection to the department.
2. Each boiler of one hundred thousand pounds [45359.24 kilograms] per hour or more capacity, used or proposed to be used within this state, which has internal continuous water treatment under the direct supervision of a graduate engineer or chemist, or one having equivalent experience in the treatment of boiler water when the water treatment is for the purpose of controlling and limiting serious corrosion and other deteriorating factors, and with respect to which boiler the chief boiler inspector has determined the owner or user has complied with the prescribed recordkeeping requirements, must be inspected at least once every thirty-six months internally while not under pressure, and at least once every twelve months externally while under pressure. If a hydrostatic test is necessary to determine the safety of a boiler, the test must be conducted by the owner or user of the equipment under the supervision of the chief boiler inspector. The owner or user of a boiler of one hundred thousand pounds [45359.24 kilograms] per hour or more capacity desiring to qualify for thirty-six-month internal inspection intervals shall keep available for examination by the chief boiler inspector accurate records showing the date and actual time the boiler is out of service and the reason for being out of service, and the results of the chemical and physical analysis of the boiler water, whether from laboratory analysis of samples taken at regular intervals of not more than forty-eight hours or from continuous online analyzers, which will adequately show the condition of the water and any other elements or characteristics of the water capable of producing corrosion or other deterioration of the boiler or its parts. If an inspection discloses deficiencies in equipment or in operating procedures, inspections may be required once every twelve months.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-08. Special inspector.

1. Upon written request of an employer, the department may appoint as a special inspector an inspector in the employ of:
   1. An insurance company authorized to insure boilers in this state against loss from explosion;
   2. A company qualified by the national board of boiler and pressure vessel inspectors as an accredited owner/user inspection organization; or
   3. A company qualified by the national board of boiler and pressure vessel inspectors as an accredited authorized inspection agency.
2. An individual may not be appointed as a special inspector unless that individual has passed the examination prescribed by the national board of boiler and pressure vessel inspectors.
3. An inspection performed by a special inspector must be performed in accordance with this chapter and a complete report of the inspection must be filed with the department in the time, manner, and form as prescribed by the department.
4. If a complete report is not filed by the special inspector’s employer with the department within ninety days from the certificate due date, the chief boiler inspector may make the required inspection, unless an extension of time is granted by the chief boiler inspector. The special inspector’s employer must pay the inspection fees as required by section 23.1-16-09 for a special inspection.
5. The chief boiler inspector may inspect any boiler to which a special inspection applies.
6. The department may, for cause, suspend or revoke the appointment of any special inspector.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-09. Inspection and certificate fees.

1. Upon completion of inspection, the owner or user of a boiler shall pay to the department fees or a combination of inspection and certificate fees. The department shall determine the inspection fees. Certificate fees are determined by section 23.1-16-10. The department shall determine and annually may adjust a fee scale for the internal inspections of power boilers, internal inspections of low-pressure heating boilers, external inspections of all boilers, and inspection of boilers used exclusively for exhibition purposes.
2. Not more than two hundred dollars may be charged or collected for any one inspection of a boiler, except for special inspections made upon request. All other inspections made by the chief boiler inspector, including shop inspections and reviews and special inspections when requested by the owner or user of a boiler, must be charged at a rate not to exceed five hundred dollars per day or three hundred dollars per half day of four hours or less, plus payment for mileage, meals, and hotel expenses as allowed by sections 44-08-04 and 54-06-09, except that the mileage rate for a state-owned vehicle will be the actual amount incurred by the department.
3. The annual fee for the issuance of a reciprocal commission card for a special inspector is forty dollars and the annual fee for the issuance of a welder-qualified card is twenty dollars.
4. The fee for taking an examination for a hobby boiler operating license is twenty-five dollars and the fee for a hobby boiler operating license is twenty-five dollars.
5. A hobby boiler operating license issued under this section is valid for six years.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-10. Certificate of inspection — Certificate to be posted.

The department shall issue a certificate of inspection for each boiler inspected upon receipt of an inspection report certifying that the boiler is in a safe condition to be operated. The department shall charge a fee of thirty-five dollars per year for each year that a certificate is valid, or part of a year thereof, for each certificate of inspection issued as the result of inspections authorized under sections 23.1-16-07 and 23.1-16-08. The fees are the liability of the owner or user and must be paid in accordance with rules adopted by the department. A certificate may not be issued for any boiler not in a safe condition to be operated or for a boiler for which the inspection and certificate fees have not been paid in full. A certificate is not valid for a period of more than thirty-six months for power boilers described in subsection 2 of section 23.1-16-07, and no more than twelve months for other power boilers, twelve months for steam traction engines, and thirty-six months for low-pressure boilers except that a two-month grace period may be extended for any certificate. Upon written request from a special inspector, the chief boiler inspector may issue a short-term certificate. Each certificate of inspection must be posted conspicuously under glass in the boiler room or adjacent to the boiler inspected.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019; 2021, ch. 52, § 5, effective July 1, 2021.

23.1-16-11. Certificate of inspection required — Penalty.

A person may not operate a boiler in this state without a valid certificate of inspection. A violation of this section is a class A misdemeanor on the part of the owner, user, or operator of the boiler.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-12. Manufacturer’s data report.

The boiler manufacturer shall provide the department with a manufacturer’s data report. When signed by an authorized inspector, this data sheet together with the stamp on the boiler is the record denoting the boiler has been constructed in accordance with the rules adopted to implement this chapter.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.

23.1-16-13. Disposition of funds.

All funds collected and received under this chapter must be paid to the state treasurer and deposited in the department of environmental quality operating fund to be used to defray the costs of boiler inspections.

Source: S.L. 2019, ch. 24, § 29, effective August 1, 2019; 2019, ch. 24, § 30, effective July 1, 2020.

23.1-16-14. Rules — Penalty for violation — Hearing.

1. The department shall adopt rules for the safe and proper installation, use, operation, and inspection of boilers and pressure vessels subject to this chapter.
2. The department shall adopt rules for the licensing of operators of hobby boilers used during parades, exhibitions, and threshing shows where the public is invited.
3. A fee must be charged for an operating license, for a license renewal, and for an examination conducted to determine minimum competence. Individuals operating hobby boilers within this state as of July 1, 2007, are considered acceptable for a license without additional training or examination. An individual who is not a resident of this state and who holds a boiler operator license or credential in another state or Canadian province is exempt from licensure as a hobby boiler operator in this state.
4. The department may not issue a certificate of inspection to any owner or user of a boiler who fails or refuses to comply with the rules. The department shall revoke any certificate presently in force upon evidence that the owner or user of the boiler is failing or refusing to comply with the rules.
5. Any owner or user of a boiler may request a hearing before the department within fifteen days from service of an order refusing or revoking a certificate of inspection. It is the burden of the owner or user to show cause why the certificate of inspection should not be refused or revoked. If no hearing is requested within the required period, the order of the department becomes final and is not subject to further proceedings.

Source: S.L. 2019, ch. 24, § 29, effective July 1, 2019.