33.1-16-01-01. General - Definitions - Permit effect - Incorporation by reference.

1. Authority. The authority for this chapter relating to the control, prevention, and abatement of pollution of natural surface and underground waters is provided by North Dakota Century Code section 61-28-04.

2. Scope and purpose. This chapter establishes procedures governing the application for, and the issuance, denial, modification, and revocation of, permits for the discharge of pollutants into the waters of the state, as defined by subsection 6 of North Dakota Century Code section 61-28-02. The establishment of such procedures is required as a condition precedent to participation by North Dakota in the national pollutant discharge elimination system, pursuant to the provisions of section 402(b) of the Federal Water Pollution Control Act [33 U.S.C. 1251 et seq.].

3. Definitions. As used in this chapter, unless the context otherwise indicates:

a. "Administrator" means the administrator of the United States environmental protection agency.

b. "Applicable water quality standards" means all water quality standards to which a discharge is subject under the Federal Water Pollution Control Act and which have been:

(1) Approved or permitted to remain in effect by the administrator following submission to the administrator pursuant to section 303(a) of the Federal Water Pollution Control Act; or (2) Promulgated by the administrator pursuant to section 303(b) or (c) of the Federal Water Pollution Control Act.

c. "Biological monitoring" means the determination of the effects on aquatic life, including accumulation of pollutants in tissue, in receiving waters due to the discharge of pollutants:

(1) By techniques and procedures, including sampling of organisms representative of appropriate levels of the food chain appropriate to the volume and the physical, chemical, and biological characteristics of the effluent; and (2) At appropriate frequencies and locations.

d. "Department" means the department of environmental quality.

e. "Discharge" when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.

f. "Discharge of a pollutant" and "discharge of pollutants" each means any addition of any pollutant to the waters of the state from any source, including the disposal of pollutants into wells.

g. "Effluent standard" or "effluent limitation" means any restriction established by the department on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into the waters of the state. Such restrictions shall be at least as stringent as standards adopted by the administrator

pursuant to the provisions of the Federal Water Pollution Control Act. Such restrictions shall include effluent limitations and applicable compliance schedules, standards of performance, toxic effluent standards and prohibitions, and pretreatment standards adopted by the administrator pursuant to the aforesaid Act.

1. h. 'EPA' means the United States environmental protection agency.
2. i. 'Industrial user' means a source of indirect discharge as defined in section 33.1-16-01.1-01.
3. j. 'Major facility' means any facility or activity subject to regulation under the national pollutant discharge elimination system which has been identified as a major facility by the regional administrator in conjunction with the department.
4. k. 'Minor discharge' means any discharge from a facility or activity which has not been identified as a major facility.
5. l. 'Municipality' means a city, county, district, association, or other public body created by or pursuant to state law and having jurisdiction over disposal of wastes, as the term is defined by subsection 2 of North Dakota Century Code section 61-28-02, or a designated and approved management agency under section 209 of the Federal Water Pollution Control Act.
6. m. 'National data bank' means a facility or system established or to be established by the administrator for the purposes of assembling, organizing, and analyzing data pertaining to water quality and the discharge of pollutants.
7. n. 'National pollutant discharge elimination system (NPDES)' means the national system for the issuance of permits under section 402 of the Federal Water Pollution Control Act of 1972 and includes any state or interstate program which has been approved by the administrator pursuant to section 402 of the Federal Water Pollution Control Act.
8. o. 'National pollutant discharge elimination system application' or 'application' means the uniform national forms, including subsequent additions, revisions, or modifications duly promulgated by the administrator pursuant to the Federal Water Pollution Control Act, for application for a national pollutant discharge elimination system permit and any state form that has been approved for use by the administrator.
9. p. 'National pollutant discharge elimination system form' means any issued national pollutant discharge elimination system permit and any uniform national form developed for use in the national pollutant discharge elimination system and prescribed in regulations promulgated by the administrator and any state form that has been approved for use by the administrator.
10. q. 'National pollutant discharge elimination system permit' means any permit issued by the department pursuant to its authority under North Dakota Century Code section 61-28-04, and subsequent to approval by the administrator as described in subsection 5 of section 33.1-16-01-04.
11. r. 'National pollutant discharge elimination system reporting form' means the uniform national forms, including subsequent additions, revisions, or modifications duly promulgated by the administrator pursuant to the Federal Water Pollution Control Act, for reporting data and information pursuant to monitoring and other conditions of national pollutant discharge elimination system permits and any state form that has been approved for use by the administrator.

s. "Person" means the state or any agency or institution thereof, any municipality, political subdivision, public or private corporation, individual, partnership, association, any agency or instrumentality of the United States government, or other entity, and includes any officer or governing or managing body of any municipality, political subdivision, or public or private corporation.

t. "Pollutant" means "wastes" as defined in subsection 2 of North Dakota Century Code section 61-28-02, including dredged spoil, solid waste, incinerator residue, garbage, sewage, sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water.

u. "Refuse Act application" means the application for a permit under section 13 of the River and Harbor Act of 1899 [33 U.S.C. 407].

v. "Regional administrator" means the regional administrator of region VIII of the environmental protection agency, which includes within its jurisdiction North Dakota.

w. "Schedule of compliance" means a schedule of remedial measures, including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard.

x. "Toxic pollutant" means those pollutants, or combinations of pollutants, including disease-causing agents, which after discharge and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will, on the basis of information available to the administrator, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions including malfunctions in reproduction, or physical deformations, in such organisms or their offspring.

y. "Waters of the state" means all water included within the definitions given in subsection 15 of North Dakota Century Code section 61-28-02 or North Dakota Century Code section 61-01-01.

4. Effect of a permit.

a. Except for any toxic effluent standards and prohibitions and standards for sewage sludge use or disposal, compliance with a permit constitutes compliance with sections 301, 302, 307, 318, 403, and 405(a) and (b) of the Clean Water Act.

b. The issuance of a permit does not convey any property rights of any sort or any exclusive privilege.

5. Incorporation by reference.

a. The subchapters, parts, subparts, and appendices of title 40 Code of Federal Regulations which are incorporated by reference into this chapter shall be treated as if they were published in full in this chapter. Except as provided in section 33.1-16-01-31 or otherwise specified, any incorporation by reference shall be as it exists on January 1, 2018.

b. Any reference to "waters of the United States" or "waters of the U.S." in any corporation by reference shall include "waters of the state" as defined in this section.

History: Effective January 1, 2019.