23-29.1 Municipal Waste Landfill Release Compensation Fund
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<![CDATA[CHAPTER 23-29.1MUNICIPAL WASTE LANDFILL RELEASE COMPENSATION FUND23-29.1-01. Declaration of purpose. The purpose of this chapter is to establish:1.A municipal waste landfill release compensation fund; and2.The eligibility requirements for participation in the fund.23-29.1-02. Definitions. As used in this chapter, unless the context otherwise requires:1."Actually incurred" means in the case of corrective action expenditures, that the<br>owner, the operator, an insurer of the owner or operator, or a contractor hired by the<br>owner, operator, or insurer has made a payment or that a contractor has expended<br>time and materials.2."Corrective action" means an action taken to minimize, contain, eliminate,<br>remediate, mitigate, or clean up a release, including any remedial emergency<br>measures. The term includes the repair of the closure of a municipal waste landfill<br>on which such action occurs.3."Department" means the state department of health.4."Fund" means the municipal waste landfill release compensation fund.5."Operator" means any person in control of, or having responsibility for, the daily<br>operation of a municipal waste landfill under this chapter.6."Owner" means any person who holds title to, controls, or possesses an interest in<br>the municipal waste landfill before or after the discontinuation of its use.7."Person" means an individual, trust, firm, joint stock company, federal agency,<br>corporation, state municipality, commission, political subdivision, or any interstate<br>body. The term also includes a consortium, a joint venture, a commercial entity, and<br>the United States government.8."Release" means any unintentional leaking, emitting, discharging, or escaping of<br>leachate from a municipal waste landfill into the environment occurring after July 1,<br>1993, but does not include discharges or designed venting allowed under federal or<br>state law or under adopted rules.23-29.1-03.Administration of fund.The department shall administer the fundaccording to this chapter. The department may employ any assistance and staff to administer<br>the fund within the limits of legislative appropriation.23-29.1-04. Adoption of rules. The department shall adopt rules regarding its practicesand procedures, the form and procedure for applications for compensation from the fund,<br>procedures for investigation of claims, procedures for determining the amount and type of costs<br>eligible for reimbursement from the fund, and procedures for persons to perform services for the<br>fund.23-29.1-05. Release discovery. An owner or operator shall notify the department if ithas reason to believe that a release has occurred. The department may require corrective action<br>as provided by subsection 10 of section 23-29-04.23-29.1-06. Owner or operator not identified. The department may initiate legal actionto compel performance of a corrective action if an identified owner or operator fails or refuses toPage No. 1comply with section 23-29.1-05, or the department may engage the services of qualified<br>contractors for performance of a corrective action if an owner or operator cannot be identified.23-29.1-07. Imminent hazard. Upon receipt of information that a release has occurredwhich may present an imminent or substantial endangerment of public health or environmental<br>resources, the department may take such emergency action as it determines necessary to<br>protect the public health or the environmental resources.23-29.1-08. Duty to take action. Nothing in this chapter limits any person's duty to takeaction related to a release. However, payment for corrective actions required as a result of a<br>release is governed by this chapter. Nothing in this chapter limits remediation activities taken or<br>directed by any state or federal agency under other environmental statutes.23-29.1-09. Providing of information. Any person whom the department has reason tobelieve is an owner or operator, or the owner of real property where corrective action is ordered<br>to be taken, or any person who may have information concerning wastes placed into a municipal<br>waste landfill, or any person who may have information concerning a release, if requested by the<br>department, must furnish to the department any information that person has or may reasonably<br>obtain that is relevant to the release.23-29.1-10.Examination of records.Any employee of the department may, uponpresentation of official credentials:1.Examine and copy books, papers, records, memoranda, or data which may be<br>related to a release of any person who has a duty to provide information to the<br>department under section 23-29.1-09; and2.Enter upon public or private property for the purpose of taking action authorized by<br>this section, including obtaining information from any person who has a duty to<br>provide the information under section 23-29.1-09, conducting surveys and<br>investigations, and taking corrective action.23-29.1-11. Responsibility for cost. The owner or operator is liable for the cost ofcorrective action required by the department, including the cost of investigating the releases, and<br>for legal actions of the department regarding the release. This chapter does not create any new<br>cause of action for damages on behalf of third parties against the fund.23-29.1-12.Liability avoided.No owner or operator may avoid liability under thischapter or other state environmental law by means of a conveyance of any right, title, or interest<br>in real property or by an indemnification, hold harmless agreement, or similar agreement.<br>However, the provisions of this chapter do not:1.Prohibit a person who may be liable from entering an agreement by which the<br>person is insured or is a member of a risk retention group, and is thereby<br>indemnified for part or all of the liability;2.Prohibit the enforcement of an insurance, hold harmless, or indemnification<br>agreement; or3.Bar a cause of action by a person who may be liable or by an insurer or guarantor,<br>whether by right of subrogation or otherwise.23-29.1-13.Other remedies.Nothing in this chapter limits the powers of thedepartment, or precludes the pursuit of any administrative, civil, injunctive, or criminal remedies<br>by the department or any other person. Administrative remedies need not be exhausted in order<br>to proceed under this chapter. The remedies provided by this chapter are in addition to those<br>provided under existing statutory or common law.Page No. 223-29.1-14.Revenue to the fund.Revenue from the following sources must bedeposited in the state treasury and credited to the fund:1.Any premium fee collected under section 23-29.1-16;2.Any money recovered by the fund under section 23-29.1-21, and any money paid<br>under an agreement, stipulation, or settlement;3.Any interest attributable to investment of money in the fund; and4.Any money received by the department in the form of gifts, grants, reimbursements,<br>or appropriations from any source intended to be used for the purposes of the fund.23-29.1-15. Eligibility.1.Any owner or operator of an active disposal unit which continues disposal of<br>municipal waste after October 9, 1993, at a municipal waste landfill site, or of a new<br>disposal unit subsequently allowed by permit, as provided by chapter 23-29, shall<br>participate in the fund for that unit provided:a.The disposal unit is designed, constructed, operated, and closed to comply with<br>federal and state statutes and adopted rules in effect as of October 9, 1993;b.The owner or operator has notified the board of the local solid waste<br>management district and the board has acknowledged and approved the<br>municipal waste landfill site to comply with chapter 23-29; andc.The owner or operator pays the annual premium fee under section 23-29.1-16<br>during the duration of operation of the landfill site, except as provided by<br>section 23-29.1-23.2.An owner or operator who does not comply with this section or with section<br>23-29.1-16 is ineligible for reimbursement of claims for corrective action.23-29.1-16. Premium fee.1.Any owner or operator of a municipal waste landfill site who is eligible and<br>participates in the fund shall:a.Notify the department, on forms to be made available by the department, of its<br>intent to participate in the fund by February 1, 1994, for active disposal units at<br>landfill sites or at the time of application for permit, as provided by chapter<br>23-29, for new disposal units, whichever date is later;b.Demonstrate that the disposal unit and the landfill site comply with applicable<br>laws and rules; andc.Pay an annual premium fee of one dollar per ton [907.18 kilograms] or<br>thirty-three cents per cubic yard [0.76 cubic meter] for all solid waste disposed<br>at the landfill site during the premium fee period.2.The premium fee is payable annually by January thirtieth for a premium fee period<br>corresponding to the previous calendar year, with the first period inclusive of the nine<br>months ending December 31, 1994.3.The premium fees collected under this section must be paid to the department for<br>deposit in the state treasury for credit to the fund.Page No. 323-29.1-17. Reimbursement for corrective action. The department shall reimburse aneligible owner or operator, as provided by section 23-29.1-15, for the costs of corrective action,<br>including the investigation, which are greater than one hundred thousand dollars.Areimbursement may not be made unless the department determines that:1.At the time the release was discovered the owner or operator and the landfill site<br>were in compliance with applicable federal and state statutes and adopted rules,<br>including rules relating to financial responsibility;2.The department was given notice of the release as required by this chapter and<br>other applicable federal and state statutes;3.The release occurred from the active disposal unit or a new disposal unit pursuant to<br>section 23-29.1-15;4.The owner or operator has paid the first one hundred thousand dollars of cost of<br>corrective action; and5.The owner or operator, to the extent possible, fully cooperated with the department<br>in responding to the release.23-29.1-18. Application for reimbursement. Any eligible owner or operator who hasundertaken corrective action in response to a release, the time of release being unknown, may<br>apply to the department for partial or full reimbursement under sections 23-29.1-04 and<br>23-29.1-17. An owner or operator may be reimbursed only for releases discovered and reported<br>after April 1, 1994.23-29.1-19. Department to determine costs. A reimbursement may not be made fromthe fund until the department has determined that the costs for which reimbursement is<br>requested were actually incurred and were reasonable. A reimbursement may be made to only<br>one person for a release.23-29.1-20. Liability of responsible person. The right to apply for reimbursement andthe receipt of reimbursement does not limit the liability of an owner or operator for damages or<br>costs as a result of a release.23-29.1-21. Recovery of expenses. Any reasonable and necessary expenses incurredby the fund as provided by sections 23-29.1-06, 23-29.1-07, 23-29.1-10, and 23-29.1-11 in taking<br>corrective action, including costs of investigating a release, and in taking legal actions may be<br>recovered in a civil action in district court brought by the department against the owner or<br>operator. The certification of expenses by an approved agent of the fund is prima facie evidence<br>that the expenses are reasonable and necessary. Any expenses that are recovered under this<br>section must be deposited in the fund.23-29.1-22. Coordination of benefits. If an eligible owner or operator has financialassurance that provides coverage for corrective action, the department shall pay the share of the<br>covered loss or damage for which the fund is responsible. The share that must be paid from the<br>fund is equal to the proportion that the applicable limit of coverage under the fund bears to the<br>limits of all financial assurance on the same basis.23-29.1-23. Fund ceiling. When the fund balance exceeds fifteen million dollars, thedepartment shall suspend collection of the premium fee. When the fund balance becomes less<br>than five million dollars through appropriations authorized by this chapter, the department shall<br>resume collection of the fee.23-29.1-24. Fund appropriation. Money in the fund is appropriated to the departmentas a standing and continuing appropriation for the purposes of this chapter.Page No. 4Document Outlinechapter 23-29.1 municipal waste landfill release compensation fund]]>