Section 33-24-05-256 - Testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities1. Requirements for generators: a. A generator of hazardous waste must determine if the waste has to be treated before it can be land disposed. This is done by determining if the hazardous waste meets the treatment standards in section 33-24-05-280, or section 33-24-05-285, or section 33-24-05-289. This determination can be made concurrently with the hazardous waste determination required in section 33-24-03-02, in either of two ways: testing the waste or using knowledge of the waste. If the generator tests the waste, testing would normally determine the total concentration of hazardous constituents, or the concentration of hazardous constituents in an extract of the waste obtained using test method 1311 in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", environmental protection agency publication SW-846, as referenced in section 33-24-01-05, depending on whether the treatment standard for the waste is expressed as a total concentration or concentration of hazardous constituent in the waste's extract. (Alternatively, the generator must send the waste to a hazardous waste permitted treatment facility, where the waste treatment facility must comply with the requirements of section 33-24-05-04 and subsection 2.) In addition, some hazardous wastes must be treated by particular treatment methods before they can be land disposed and some soils are contaminated by such hazardous wastes. These treatment standards are also found in section 33-24-05-280 and are described in detail in section 33-24-05-282, table 1. These wastes, and soils contaminated with such wastes, do not need to be tested (however, if they are in a waste mixture, other wastes with concentration level treatment standards would have to be tested). If a generator determines they are managing a waste or soil contaminated with a waste, that displays a hazardous characteristic of ignitability, corrosivity, reactivity, or toxicity, they must comply with the special requirements of section 33-24-05-258 in addition to any applicable requirements in this section.b. If the waste or contaminated soil does not meet the treatment standards, or if the generator chooses not to make the determination of whether the generator's waste must be treated, with the initial shipment of waste to each treatment or storage facility, the generator must send a one-time written notice to each treatment or storage facility receiving the waste and place a copy in the file. The notice must include the information in column "subdivision b" of the generator paperwork requirements table in subdivision d. (Alternatively, if the generator chooses not to make the determination of whether the waste must be treated, the notification must include the hazardous waste numbers and manifest number of the first shipment and must state "This hazardous waste may or may not be subject to the land disposal restrictions treatment standards. The treatment facility must make the determination".) No further notification is necessary until such time that the waste or facility change, in which case a new notification must be sent and a copy placed in the generator's file. (1) For contaminated soil, the following certification statement should be included, signed by an authorized representative: I certify under penalty of law that I personally have examined this contaminated soil and it [does/does not] contain listed hazardous waste and [does/does not] exhibit a characteristic of hazardous waste and requires treatment to meet the soil treatment standards as provided by subsection 3 of section 33-24-05-289.
c. If the waste or contaminated soil meets the treatment standard at the original point of generation: (1) With the initial shipment of waste to each treatment, storage, or disposal facility, the generator must send a one-time written notice to each treatment, storage, or disposal facility receiving the waste and place a copy in the file. The notice must include the information indicated in column "subdivision c" of the generator paperwork requirements table in subdivision d of subsection 1 and the following certification statement, signed by an authorized representative: I certify under penalty of law that I personally have examined and am familiar with the waste through analysis and testing or through knowledge of the waste to support this certification that the waste complies with the treatment standards specified in sections 33-24-05-280 through 33-24-05-289. I believe that the information I submitted is true, accurate, and complete. I am aware that there are significant penalties for submitting a false certification, including the possibility of a fine and imprisonment.
(2) For contaminated soil, with the initial shipment of wastes to each treatment, storage, or disposal facility, the generator must send a one-time written notice to each facility receiving the waste and place a copy in the file. The notice must include the information in column "subdivision c" of the generator paperwork requirements table in subdivision d of subsection 1.(3) If the waste changes, the generator must send a new notice and certification to the receiving facility and place a copy in its files. Generators of hazardous debris excluded from the definition of hazardous waste under subsection 5 of section 33-24-02-03 are not subject to these requirements.d. For reporting, tracking, and recordkeeping when exceptions allow certain wastes or contaminated soil that do not meet the treatment standards to be land disposed: There are certain exemptions from the requirement that hazardous wastes or contaminated soil meet treatment standards before they can be land disposed. These include, but are not limited to case-by-case extensions under section 33-24-05-254, disposal in a no-migration unit under section 33-24-05-255, or a national capacity variance or case-by-case capacity variance under sections 33-24-05-266 through 33-24-05-279. If a generator's waste is so exempt, then with the initial shipment of waste, the generator must send a one-time written notice to each land disposal facility receiving the waste. The notice must include the information indicated in column "subdivision d" of the generator paperwork requirements table. If the waste changes, the generator must send a new notice to the receiving facility and place a copy in its files. Generator Paperwork Requirements Table |
Required Information* | Subdivision b | Subdivision c | Subdivision d | Subdivision i |
1. Environmental protection agency hazardous waste numbers and manifest number of first shipment. | TICK | TICK | TICK | TICK |
2. Statement: This waste is not prohibited from land disposal. | | | TICK | |
3. The waste is subject to the land disposal restrictions. The constituents of concern for F001-F005, and F039, and underlying hazardous constituents in characteristic wastes, unless the waste will be treated and monitored for all constituents. If all constituents will be treated and monitored, there is no need to put them all on the land disposal restriction notice. | TICK | TICK | | |
4. The notice must include the applicable wastewater/nonwastewater category (see subsections 7 and 11 of section 33-24-05-251) and subdivisions made within a waste code based on waste-specific criteria (such as D003 reactive cyanide). | TICK | TICK | | |
5. Waste analysis data (when available). | TICK | TICK | TICK | |
6. Date the waste is subject to the prohibition. | | | TICK | |
7. For hazardous debris, when treating with the alternative treatment technologies provided by section 33-24-05-285, the contaminants subject to treatment, as described in subsection 2 of section 33-24-05-285; and an indication that these contaminants are being treated to comply with section 33-24-05-285. | TICK | | TICK | |
8. For contaminated soil subject to land disposal restrictions as provided in subsection 1 of section 33-24-05-289, the constituents subject to treatment as described in subsection 4 of section 33-24-05-289, and the following statements: This contaminated soil [does/does not] contain listed hazardous waste and [does/does not] exhibit a characteristic of hazardous waste and [is subject to/complies with] the soil treatment standards as provided by subsection 3 of section 33-24-05-289 or the universal treatment standards. | TICK | TICK | | |
9. A certification is needed (see applicable section for exact wording). | | TICK | | TICK |
*Note: Information requirements referenced in the above table can be found in the indicated subdivision of subsection 1.
e. If a generator is managing and treating prohibited waste, or contaminated soil in tanks, containers, or containment buildings regulated under section 33-24-03-12 to meet applicable land disposal restriction treatment standards found at section 33-24-05-280, the generator must develop and follow a written waste analysis plan which describes the procedures the generator will carry out to comply with the treatment standards. (Generators treating hazardous debris under the alternative treatment standards of table 1, section 33-24-05-285, however, are not subject to these waste analysis requirements.) The plan must be kept onsite in the generator's records, and the following requirements must be met: (1) The waste analysis plan must be based on a detailed chemical and physical analysis of a representative sample of the prohibited waste or wastes being treated and contain all information necessary to treat the waste or wastes in accordance with the requirements of sections 33-24-05-250 through 33-24-05-299, including the selected testing frequency.(2) Such plan must be kept in the facility's onsite files and made available to inspectors. (3) Wastes shipped offsite pursuant to this subdivision must comply with the notification requirements of subdivision c .f. If a generator determines that the waste, or contaminated soil, is restricted based solely on the generator's knowledge of the waste, all supporting data used to make this determination must be retained onsite in the generator's files. If a generator determines that the waste or contaminated soil is restricted based on testing this waste or an extract developed using the test method 1311 in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", environmental protection agency publication SW-846, incorporated by reference in section 33-24-01-05, and all waste analysis data must be retained onsite in the generator's files.g. If a generator determines that the generator is managing a prohibited waste that is excluded from the definition of hazardous or solid waste or is exempted from hazardous waste regulation under sections 33-24-02-02 through 33-24-02-06 subsequent to the point of generation (including deactivated characteristic hazardous wastes managed in wastewater treatment systems subject to the Clean Water Act, as specified at subdivision b of subsection 1 of section 33-24-02-04 or that are Clean Water Act-equivalent, or are managed in an underground injection well regulated by the Safe Drinking Water Act), the generator must place a one-time notice describing such generation, subsequent exclusion from the definition of hazardous or solid waste or exemption from hazardous waste regulation, and the disposition of the waste, in the facility's onsite files.h. Generators must retain onsite a copy of all notices, certifications, waste analysis data, and other documentation produced pursuant to this section for at least three years from the date that the waste that is the subject of such documentation was last sent to onsite or offsite treatment, storage, or disposal. The three-year record retention period is automatically extended during the course of any unresolved enforcement action regarding the regulated activity or as requested by the department. The requirements of this subsection apply to solid wastes even when the hazardous characteristic is removed prior to disposal, or when the waste is excluded from the definition of hazardous or solid waste under sections 33-24-02-02 through 33-24-02-06, or exempted from hazardous waste regulation, subsequent to the point of generation.i. If a generator is managing a lab pack containing hazardous wastes and wishes to use the alternative treatment standard for lab packs found at subsection 3 of section 33-24-05-282: (1) With the initial shipment of waste to a treatment facility, the generator must submit a notice that provides the information in column "subdivision i" in the generator paperwork requirements table of subdivision d, and the following certification. The certification, which must be signed by an authorized representative and must be placed in the generator's files, must say the following: I certify under penalty of law that I personally have examined and am familiar with the waste and that the lab pack contains only wastes that have not been excluded under appendix VIII to 33-24-05 and that this lab pack will be sent to a combustion facility in compliance with the alternative treatment standards for lab packs at subsection 3 of section 33-24-05-282. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine or imprisonment.
(2) No further notification is necessary until such time that the wastes in the lab pack change, or the receiving facility changes, in which case a new notice and certification must be sent and a copy placed in the generator's file.(3) If the lab pack contains characteristic hazardous wastes (D001-D043), underlying hazardous constituents (as defined in subsection 10 of section 33-24-05-251) need not be determined.(4) The generator must also comply with the requirements in subdivisions f and g.j. Small quantity generators with tolling agreements pursuant to subsection 5 of section 33-24-03-04 must comply with the applicable notification and certification requirements of subsection 1 for the initial shipment of the waste subject to the agreement. Such generators must retain onsite a copy of the notification and certification, together with the tolling agreement, for at least three years after termination or expiration of the agreement. The three-year record retention period is automatically extended during the course of any unresolved enforcement action regarding the regulated activity or as requested by the department.2. Treatment facilities must test their wastes according to the frequency specified in their waste analysis plans as required by section 33-24-05-04 for permitted facilities or the applicable requirements of subsection 5 of section 33-24-06-16 for interim status facilities. Such testing must be performed as provided in subdivisions a, b, and c. a. For wastes or contaminated soil with treatment standards expressed in the waste extract (toxicity characteristic leaching procedure), the owner or operator of the treatment facility must test an extract of the treatment residues, using test method 1311 (the toxicity characteristic leaching procedure, described in ``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods'', environmental protection agency publication SW-846, as incorporated by reference in section 33-24-01-05) to assure that the treatment residues extract meet the applicable treatment standards.b. For wastes or contaminated soil with treatment standards expressed as concentrations in the waste, the owner or operator of the treatment facility must test the treatment residues (not an extract of such residues) to assure that they meet the applicable treatment standards.c. A one-time notice must be sent with the initial shipment of waste or contaminated soil to the land disposal facility. A copy of the notice must be placed in the treatment facility's file. (1) No further notification is necessary until such time that the waste or receiving facility change, in which case a new notice must be sent and a copy placed in the treatment facility's file.(2) The one-time notice must include these requirements: Treatment Facility Paperwork Requirements Table |
Required Information | Subsection 2 |
1. Hazardous waste number or numbers and manifest number of first shipment. | TICK |
2. The waste is subject to the land disposal restrictions. The constituents of concern for F001-F005, and F039, and underlying hazardous constituents in characteristic wastes, unless the waste will be treated and monitored for all constituents. If all constituents will be treated and monitored, there is no need to put them all on the land disposal restriction notice. | TICK |
3. The notice must include the applicable wastewater/nonwastewater category (see subsections 7 and 11 of section 33-24-05-251), and subdivisions made within a waste code based on waste-specific criteria (such as D003 reactive cyanides). | TICK |
4. Waste analysis data (when available). | TICK |
5. For contaminated soil subject to land disposal restrictions as provided in subsection 1 of section 33-24-05-289, the constituents subject to treatment as described in subsection 4 of section 33-24-05-289, and the following statement: "This contaminated soil [does/does not] contain listed hazardous waste and [does/does not] exhibit a characteristic of hazardous waste and [is subject to/complies with] the soil treatment standards as provided by subsection 3 of section 33-24-05-289." | TICK |
6. A certification is needed (see applicable section for exact wording). | TICK |
d.- The treatment facility must submit a one-time certification signed by an authorized representative with the initial shipment of waste or treatment residue of a restricted waste to the land disposal facility. The certification must state: I certify under penalty of law that I have personally examined and am familiar with the treatment technology and operation of the treatment process used to support this certification. Based on my inquiry of those individuals immediately responsible for obtaining this information, I believe that the treatment process has been operated and maintained properly so as to comply with the treatment standards specified in section 33-24-05-280 without impermissible dilution of the prohibited waste. I am aware there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.
A certification is also necessary for contaminated soil and it must state:
I certify under penalty of law that I have personally examined and am familiar with the treatment technology and operation of the treatment process used to support this certification and believe that it has been maintained and operated properly so as to comply with treatment standards specified in section 33-24-05-289 without impermissible dilution of the prohibited wastes. I am aware there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.
(1) A copy of the certification must be placed in the treatment facility's onsite files. If the waste or treatment residue changes, or the receiving facility changes, a new certification must be sent to the receiving facility, and a copy placed in the file.(2) Debris excluded from the definition of hazardous waste under subsection 5 of section 33-24-02-03 (for example, debris treated by an extraction or destruction technology provided by table 1, section 33-24-05-285, and debris that the department has determined does not contain hazardous waste), however, is subject to the notification and certification requirements of subsection 4 rather than the certification requirements of this subsection.(3) For wastes with organic constituents having treatment standards expressed as concentration levels, if compliance with the treatment standards is based in whole or in part on the analytical detection limit alternative specified in subsection 4 of section 33-24-05-280, the certification, signed by an authorized representative, must state the following: I certify under penalty of law that I have personally examined and am familiar with the treatment technology and operation of the treatment process used to support this certification. Based on my inquiry of those individuals immediately responsible for obtaining this information, I believe that the nonwastewater organic constituents have been treated by combustion units as specified in section 33-24-05-282, table 1. I have been unable to detect the nonwastewater organic constituents, despite having used best good-faith efforts to analyze for such constituents. I am aware there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.
(4) For characteristic wastes that are subject to the treatment standards in section 33-24-05-280 (other than those expressed as a method of treatment), or section 33-24-05-289, and that contain underlying hazardous constituents as defined in subsection 10 of section 33-24-05-251; if these wastes are treated onsite to remove the hazardous characteristic; and are then sent offsite for treatment of underlying hazardous constituents, the certification must state the following: I certify under penalty of law that the waste has been treated in accordance with the requirements of section 33-24-05-280 or 33-24-05-289 to remove the hazardous characteristic. This decharacterized waste contains underlying hazardous constituents that require further treatment to meet treatment standards. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.
(5) For characteristic wastes that contain underlying hazardous constituents as defined subsection 10 of section 33-24-05-251 that are treated onsite to remove the hazardous characteristic to treat underlying hazardous constituents to levels in section 33-24-05-288 universal treatment standards, the certification must state the following: I certify under penalty of law that the waste has been treated in accordance with the requirements of section 33-24-05-280 to remove the hazardous characteristic and that underlying hazardous constituents, as defined in subsection 10 of section 33-24-05-251 have been treated onsite to meet the section 33-24-05-288 universal treatment standards. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.
e. If the waste or treatment residue will be further managed at a different treatment, storage, or disposal facility, the treatment, storage, or disposal facility sending the waste or treatment residue offsite must comply with the notice and certification requirements applicable to generators under this section. f. Where the wastes are recyclable materials used in a manner constituting disposal subject to the provisions of subsection 2 of section 33-24-05-201 regarding treatment standards and prohibition levels, the owner or operator of a treatment facility (the recycler) must, for the initial shipment of waste, prepare a one-time certification described in subdivision d, and a one-time notice which includes the information listed in subdivision c (except the manifest number) . The certification and notification must be placed in the facility's onsite files. If the waste or the receiving facility changes, a new certification and notification must be prepared and placed in the onsite files. In addition, the recycling facility must also keep records of the name and location of each entity receiving the hazardous waste-derived product.3. Except where the owner or operator is disposing of any waste that is a recyclable material used in a manner constituting disposal pursuant to subsection 2 of section 33-24-05-201, the owner or operator of any land disposal facility disposing any waste subject to restrictions under sections 33-24-05-250 through 33-24-05-299 must: a. Have copies of the notice and certifications specified in subsection 1 or 2.b. Test the waste, or an extract of the waste or treatment residue developed using test method 1311 (the toxicity characteristic leaching procedure, described in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", environmental protection agency publication SW-846, as incorporated by reference in section 33-24-01-05), to assure that the wastes or treatment residues are in compliance with the applicable treatment standards set forth in sections 33-24-05-280 through 33-24-05-289. Such testing must be performed according to the frequency specified in the facility's waste analysis plan as required by section 33-24-05-04, or the applicable requirements of subsection 5 of section 33-24-06-16 for interim status facilities.4. Generators or treaters who first claim that hazardous debris is excluded from the definition of hazardous waste under subsection 5 of section 33-24-02-03 (for example, debris treated by an extraction or destruction technology provided by table 1 in section 33-24-05-285, and debris that the department has determined does not contain hazardous waste) are subject to the following notification and certification requirements: a. A one-time notification, including the following information, must be submitted to the department: (1) The name and address of the nonhazardous waste facility receiving the treated debris;(2) A description of the hazardous debris as initially generated, including the applicable hazardous waste numbers; and(3) For debris excluded under subdivision a of subsection 5 of section 33-24-02-03, the technology from table 1, section 33-24-05-285, used to treat the debris.b. The notification must be updated if the debris is shipped to a different facility, and, for debris excluded under subdivision a of subsection 5 of section 33-24-02-03, if a different type of debris is treated or if a different technology is used to treat the debris.c. For debris excluded under subdivision a of subsection 5 of section 33-24-02-03, the owner or operator of the treatment facility must document and certify compliance with the treatment standards of table 1 in section 33-24-05-285, as follows: (1) Records must be kept of all inspections, evaluations, and analyses of treated debris that are made to determine compliance with the treatment standards;(2) Records must be kept of any data or information the treater obtains during treatment of the debris that identifies key operating parameters of the treatment unit; and(3) For each shipment of treated debris, a certification of compliance with the treatment standards must be signed by an authorized representative and placed in the facility's files. The certification must state the following: I certify under penalty of law that the debris has been treated in accordance with the requirements of section 33-24-05-285. I am aware that there are significant penalties for making a false certification, including the possibility of fine and imprisonment.
5. Generators and treaters who first receive from the department a determination that a given contaminated soil subject to the land disposal restrictions as provided in subsection 1 of section 33-24-05-289 no longer contains a listed hazardous waste and generators and treaters who first determine that a contaminated soil subject to the land disposal restrictions as provided in subsection 1 of section 33-24-05-289 no longer exhibits a characteristic of hazardous waste must:a. Prepare a one-time only documentation of these determinations, including all supporting information; andb. Maintain that information in the facility files and other records for a minimum of three years.N.D. Admin Code 33-24-05-256
Effective December 1, 1988; amended effective December 1, 1991; January 1, 1994; July 1, 1997; December 1, 2003.Amended by Administrative Rules Supplement 2016-359, January 2016, effective 1/1/2016.General Authority: NDCC 23-20.3-03
Law Implemented: NDCC 23-20.3-03, 23-20.3-04