N.D. Admin. Code Title 69 — Public Service Commission

Article 69-01 General Administration

Chapter 69-01-01 Organization of Commission

N.D. Admin. Code 69-01-01-01 Organization and functions of the public service commission

1.Jurisdiction. The commission's duties are prescribed by the legislative assembly. The commission has jurisdiction over railroads, telecommunications companies, pipeline, electric, and heating companies, weights and measures, siting of energy plants and transmission facilities, reclamation of mined lands, and all other public utilities engaged in business in this state.

The commission does not have jurisdiction over the rates of rural electric cooperatives, most small telephone companies, or cable television.

2.Organization.

a.Commissioners. The three public service commissioners are statewide elected officials, each serving a six-year term with one commissioner's term expiring every two years. The commissioners are responsible for the exercise of the powers and duties of the commission. Although the workload is divided among the commissioners, each commissioner exercises equal power and shares equal responsibility for each decision.

b.Executive secretary. The public service commission appoints an executive secretary who coordinates, supervises, and directs the commission's day-to-day operations and advises and assists the commission in the discharge of its statutory responsibilities. The executive secretary handles all administrative matters relating to personnel, accounting, purchasing, payroll, and budget preparation.

Currently, the executive secretary also serves as the director of the public utilities division.

c.Counsel. The attorney general is the attorney for the commission, but based on commission recommendation has appointed counsel to act as legal advisor to the commission.

d.Commission divisions. The commission has seven divisions:

Abandoned mine lands division Accounting division Legal division Public utility division Reclamation division Compliance division

3.Functions of the divisions.

a.Abandoned mine lands division. The abandoned mine lands division administers a federal program to remove hazards and environmental problems associated with abandoned mines. The division investigates abandoned mine lands sites, designs reclamation projects, submits applications for federal funds, and manages construction projects under public contracts.

b.Accounting division. The accounting division provides accounting and data processing services to all commission divisions.

c.Legal division. The legal division provides legal representation, advice, and counsel to the commission and divisions. The legal division also provides assistance to the commission relating to railroads, including responsibilities associated with the intrastate

regulation of railroads and assisting the commission in representing the state's rail interests at the federal level.

d.Public utility division. The public utility division provides technical and administrative assistance to the commission in regulating telecommunications and electric and gas utilities and in siting energy conversion and transmission facilities.

The division makes recommendations on applications for the siting of energy conversion and transmission facilities and on enforcement of commission orders permitting electric powerlines, gas pipelines, and electrical generation plants.

The division also responds to complaints, inquiries, and requests for information about activities or companies within the commission's jurisdiction. It promotes consumer understanding of the regulatory process and facilitates public participation.

e.Reclamation division. The reclamation division is responsible for the administration and enforcement of state environmental law regarding surface coal mining and reclamation operations. It also administers commission authority under the Surface Owner Protection Act.

f.Testing and safety division. The testing and safety division provides a fair basis for commercial transactions by maintaining the necessary standards of weight, volume, and length. It tests commercial weighing and measuring devices for accuracy to protect both the buyer and seller. It also administers the gas distribution and intrastate pipeline safety program.

4.Inquiries. General inquiries to the public service commission may be addressed to the executive secretary of the commission. Specific inquiries about the functions of each division may be addressed to the division director. Requests for hearings, rulings, or participation in rulemaking should be addressed to the executive secretary, unless the public notice directs otherwise.

The commission's telephone number is 701-328-2400. Fax: 701-328-2410. E-Mail: ndpsc@state.nd.us.

Correspondence should be addressed as follows:

Public Service Commission 600 East Boulevard Avenue, Dept. 408 Bismarck, ND 58505-0480

October 1, 1987; October 1, 1989; February 1, 1992; May 1, 1993; April 1, 1994; May 1, 1995;

February 1, 1998; February 1, 2000; June 1, 2005; June 9, 2025.

History

• History: Amended effective August 1, 1981; December 1, 1981; August 1, 1983; March 1, 1986;
• General Authority: NDCC 28-32-02.1
• Law Implemented: NDCC 28-32-02.1

Article 69-02 Practice and Procedure

Chapter 69-02-01 General Provisions

N.D. Admin. Code 69-02-01-01 Applicability

This article applies to all proceedings before the public service commission unless inconsistent with a specific statute or rule, in which case the more specific statute or rule applies.

N.D. Admin. Code 69-02-01-02 Address - Sessions

The office of the public service commission is in the state capitol, 600 east boulevard, department 408, Bismarck, North Dakota 58505-0480. The commission is continually in session.

History

• History: Amended effective September 1, 1992; January 1, 2001.

N.D. Admin. Code 69-02-01-03 Communications

All correspondence to and filings with the commission must be on eight and one-half by eleven-inch [21.59 by 27.94-centimeter] paper and must be addressed to:

Executive Secretary Public Service Commission State Capitol Bismarck, North Dakota 58505-0480 Documents must be printed, typewritten, or otherwise mechanically reproduced. The left, top, and bottom margins must be one inch [2.54 centimeters] deep on all pages. Each filing must contain a transmittal letter summarizing the authorization, permission, or relief requested, including the name and address of the person making the filing, and identify each item in the filing.

History

• History: Amended effective August 1, 1981; September 1, 1992.

N.D. Admin. Code 69-02-01-04 Case numbers and title

Each matter before the commission is a case and will be given a docket number and title, descriptive of the subject matter. The number and title must be used on all filings and correspondence concerning the case.

N.D. Admin. Code 69-02-01-05 Personal and representative appearances

Participants may appear in any proceeding in person or by an attorney or other qualified representative.

The following persons may appear in any proceeding: (1) an individual in the individual's own behalf; (2) a member of a partnership; (3) an officer or authorized employee of a corporation, association, group, government agency, department, or subdivision.

N.D. Admin. Code 69-02-01-06 Practice before the commission

1.Party in own interest. Any party may appear before the commission in the party's own right.

2.Attorneys. Attorneys at law who are admitted to practice in North Dakota may practice before the commission.

3.Other persons. Any other person who possesses the necessary legal or technical qualifications to enable the person to render valuable service may, with the commission's permission, practice before the commission.

4.Rules of conduct. All persons appearing before the commission must conform to the standards of ethical conduct required of practitioners before the courts of the state of North Dakota. The commission or a hearing officer may bar a person from appearing before the commission for improper conduct.

History

• History: Amended effective September 1, 1992; April 2011.

N.D. Admin. Code 69-02-01-07 Parties

1.Classification. Parties to proceedings before the commission are designated as applicants, complainants, petitioners, intervenors, protestants, or respondents, according to the nature of the proceeding and the party's interest.

2.Applicant. An applicant is a person filing a formal written request with the commission for some right, privilege, or authorization.

3.Complainant. A complainant is a person who complains to the commission of acts done or omitted to be done in violation of law, rule, or order.

4.Petitioner. A petitioner is a person seeking relief not otherwise designated.

5.Intervenor. An intervenor is a person, other than an original party to a pending proceeding, who becomes a party under section 69-02-02-05. Admission as an intervenor shall not be construed as recognition by the commission that the intervenor might be aggrieved by any order of the commission in the proceeding.

6.Protestant. A protestant is a person opposing on grounds of private or public interest the approval of an application, petition, motion, or other matter under consideration by the commission.

7.Respondent. A respondent is a person subject to the authority of the commission to whom an order or notice is issued by the commission instituting a proceeding or investigation on its own initiative or against whom a complaint is filed.

N.D. Admin. Code 69-02-01-08 Investigation

The commission may, upon its own motion or upon the complaint of any person, institute investigation proceedings and hold investigatory hearings in any matter under its jurisdiction. In addition to the evidence presented by the parties, the commission may, through its staff or otherwise, secure and present such evidence as it considers necessary or desirable in any proceeding.

History

• Law Implemented: NDCC 28-32-08, 49-01-07

N.D. Admin. Code 69-02-01-09 Definitions

As used in this article except as otherwise required by the context:

1."Commission" and "commissioner" mean the public service commission, and a member thereof, respectively.

2."Commission's staff" includes the commission's experts, employees, and attorneys.

3."Executive secretary" means the executive secretary or office of the executive secretary of the commission.

4."Hearing officer" includes any one or more of the members of the commission duly designated, or one or more hearing officers appointed according to law and duly designated to preside at hearings or conferences.

5."Participants" includes any party or person admitted by the commission to participate in a proceeding, including the commission's staff.

6."Person" includes any individual, partnership, corporation, association, organized group including governmental agencies and subdivisions and trade associations.

7."Public utility" includes any association, person, firm, corporation, or agency engaged or employed in any business which is under the jurisdiction of the commission. (See North Dakota Century Code section 49-01-01.)

8."Tariff" includes any rate, joint rate, fare, toll, schedule, price schedule, classification, contract, practice, rule, regulation, or service, which is required by law to be filed with the commission.

N.D. Admin. Code 69-02-01-10 Liberal construction

This article shall be liberally construed to secure just, speedy, and inexpensive determination of the issues presented.

N.D. Admin. Code 69-02-01-11 Suspension of rules

The commission reserves the right to suspend, either upon its own motion or upon the motion of any party, the operation of or necessity for compliance with any rule of procedure or part thereof, upon due notice to all parties, whenever the public interest or the interest of any party to a proceeding will not be substantially prejudiced thereby.

Chapter 69-02-02 Pleadings

N.D. Admin. Code 69-02-02-01 Informal complaint

1.Form and disposition. Informal complaints may be made orally or in writing. Letters to the commission will be considered informal complaints. Informal complaints may be handled by any of the following methods:

a.Correspondence or other informal communications.

b.Conference with the parties.

c.Formal investigation upon motion of the commission.

d.Any other appropriate manner to bring about a resolution without formal hearing.

2.Rate complaints. Complaints concerning the rates or charges of any heat, gas, or electrical public utility made by less than ten percent of the consumers or purchasers shall be treated as informal complaints.

N.D. Admin. Code 69-02-02-02 Formal complaints

1.Complaints. Complaints may be made by the commission on its own motion, or by any person. Complaints will be in writing and set forth the act or omission complained of. If the complaint is against the reasonableness of any rate or charge of any heat, gas, or electrical public utility, the commission cannot entertain it unless it is signed by the governing body of the county or city, if any, within which the alleged violation occurred, or by not less than ten percent of the consumers or purchasers of such heat, gas, or electrical service.

2.Form and content. A formal complaint must show the venue, "Before the Public Service Commission of North Dakota" and will contain a heading showing the name of the complainant and the name of each respondent. The complaint must include the name, address, and telephone number of each complainant's attorney, if any. The complaint will be drawn to fully advise the respondent and the commission of the factual and legal grounds of the complaint, the injury complained of, and the specific relief sought.

3.Number of copies. At the time the complaint is filed, the complainant must also file a copy for each respondent plus seven additional copies.

4.Sufficiency of complaint. Upon the filing of a formal complaint, the commission will determine whether it states a prima facie case and conforms to this article. If the complaint does not state a prima facie case or does not conform to this article, the commission will notify the complainant and provide the complainant an opportunity to amend within a specified time.

If the complaint is not amended, it will be dismissed. The filing of an answer is not an admission of the sufficiency of the complaint.

5.Service.

a.If the complaint is sufficient, the commission will serve a copy of the complaint on each respondent.

b.The commission will serve the complaint and notice of hearing personally or by certified mail at least forty-five days before the time specified for hearing. The complaint must be served at least forty-five days before the date of the hearing. Service of a complaint and notice of hearing may be waived, in writing, by the respondent. The parties may agree upon a time and place for hearing, with the consent of the commission.

c.In case of an emergency, the commission may notice a proceeding for hearing upon its merits upon less than forty-five days' notice. The time provided for the respondent's answer must be adjusted accordingly.

d.Notwithstanding subdivision c hearings on a renewal, suspension, or revocation of a license may not be held on less than ten days' notice, unless a statute specifically allows or requires suspension or revocation without a hearing.

History

• History: Amended effective September 1, 1992; January 1, 2001; April 1, 2015.
• Law Implemented: NDCC 28-32-05, 49-01-07

N.D. Admin. Code 69-02-02-03 Answers

1.Filing. Answers to complaints must be filed within twenty days after service of the complaint.

2.Content. Each answer must contain:

a.The title of the proceeding and docket number;

b.The name and address of each answering party;

c.A specific denial of each material allegation of the complaint which is controverted by the respondent;

d.A statement of any new matter which may constitute a defense; and

e.The name, address, and telephone number of each of the respondent's attorneys, if any.

If the answering party has no information or belief upon the subject sufficient to enable the party to answer an allegation of the complaint, the party may so state in the answer and place the denial upon that ground.

3.Service and number of copies. The original answer and seven copies thereof must be filed with the executive secretary of the commission. The respondent shall serve a copy of its answer personally, or by certified mail, upon each complainant. The respondent shall certify to the commission that the service has been made.

History

• History: Amended effective September 1, 1992; January 1, 2001; April 1, 2015.
• Law Implemented: NDCC 28-32-05, 49-01-07

N.D. Admin. Code 69-02-02-04 Application

An application is a proceeding seeking some right, privilege, or authorization which the commission may give under statutory or other authority administered by it.

1.Contents. Applications must be in writing and must:

a.Set forth the full name and post-office address of the applicant;

b.State clearly and concisely the authorization or permission sought; and

c.Cite by appropriate reference the statutory provision or other authority under which the commission authorization or permission is sought.

2.Number of copies. An original and seven copies of an application must be filed.

3.Articles of incorporation or partnership agreement.

a.Corporations. If the applicant is a corporation, a certified copy of its articles of incorporation must be annexed to the application. An original certificate of good standing must also be filed.

b.Partnerships. If the applicant is a partnership, the partnership agreement and any fictitious name certificate must be filed.

c.If the applicant's articles of incorporation or partnership agreement have already been filed with the commission in some prior proceeding, it is sufficient if this fact is stated in the application and reference is made to the case number and number of the prior proceeding.

4.Financial statement. Whenever the commission requires the filing of a financial statement by any utility, the applicant shall file consolidated financial statements for the most recent fiscal year using generally accepted accounting principles or, if applicable, accounting standards required by federal regulatory jurisdictions. Each financial statement must include:

a.A balance sheet of the form and style usually followed in the industry.

b.An income statement of the form and style usually followed in the industry.

c.If available, an independent accountant's financial opinion.

d.Any other information requested by the commission.

History

• History: Amended effective September 1, 1992; January 1, 2001.

N.D. Admin. Code 69-02-02-05 Intervention

Any person with a substantial interest in a proceeding may petition to intervene in that proceeding by complying with this section. An intervention may be granted if the petitioner has a statutory right to be a party to the proceeding; or the petitioner has a legal interest which may be substantially affected by the proceeding, and the intervention would not unduly broaden the issues or delay the proceeding.

The commission may impose conditions and limitations on an intervention to promote the interests of justice.

1.Contents of petition to intervene. A petition to intervene must be in writing and must set forth the grounds for intervention, the position and interest of the petitioner in the proceeding, what the petitioner would contribute to the hearing, and whether the petitioner's position is in support of or in opposition to the relief sought.

2.When filed. A petition to intervene in any proceeding must be filed at least ten days prior to the hearing, but not after except for good cause shown.

3.Number of copies. The petitioner will serve a copy of the petition on each party to the proceeding and will file with the commission the original and seven copies.

4.Effect. Admission as an intervenor shall not be construed as recognition by the commission that such intervenor might be aggrieved by an order of the commission in such proceeding.

History

• Law Implemented: NDCC 28-32-08.2, 49-01-07

N.D. Admin. Code 69-02-02-06 Extensions of time

A request for an extension of time must be by timely written motion stating the facts on which the motion rests.

N.D. Admin. Code 69-02-02-07 Amendments and withdrawals

1.Amendments. The commission may, after notice to the other parties to a proceeding, allow any pleading to be amended and may permit any party affected by the amendment a reasonable time to prepare to meet the changed issues. If the amendment is to an application by a public utility for a rate increase based in whole or in part on the utility's revenue and profitability, and the amendment substantially changes the application, the change must be considered a new filing under North Dakota Century Code section 49-05-06.

2.Withdrawals. A participant desiring to withdraw a pleading filed with the commission may file a notice of withdrawal. The notice must set forth the reason for the withdrawal. A copy of the withdrawal notice must be served upon all other participants and a certificate of service to that effect must be filed with the notice of withdrawal. This section does not allow, without express permission of the commission, withdrawal of any pleading in any proceeding in which a hearing has been held or convened.

Substantial change from or amendment to the original application which occurs during hearing must be considered an amendment to the pleadings under section 69-02-02-07.

History

• Law Implemented: NDCC 28-32-08.1, 49-01-07 69-02-02-07.1. Amendment at hearing.
• History: Effective September 1, 1992.

N.D. Admin. Code 69-02-02-08 Motion

All motions shall be in writing, unless made at a hearing, and shall be served on the other parties to the proceeding.

1.Argument. The commission may set any motion for oral argument.

2.Disposition. The hearing officer designated to preside at a hearing is authorized to rule upon any motion not formally acted upon by the commission prior to the commencement of the hearing, if an immediate ruling is essential in order to proceed with the hearing. If a ruling upon a motion would involve or constitute a final determination of the proceeding, the motion may not be ruled upon by a hearing officer.

N.D. Admin. Code 69-02-02-09 Show cause orders

1.The commission may, by order, compel any person to whom it has granted authority to show cause why the authority should not be suspended, changed, or revoked in whole or in part.

The term "authority" includes a certificate, license, and permit.

2.The commission may, by order, compel any person subject to its jurisdiction to show cause why the person has failed to comply with applicable laws, rules, or orders of the commission.

3.The order to show cause shall specifically advise the respondent of the violation and of the time and place of the hearing on the order.

4.An order to show cause must be accompanied by an affidavit setting forth the specific factual and statutory basis upon which the order was issued.

5.At the conclusion of show cause proceedings, the commission may enter a cease and desist order or any order it deems just and reasonable.

Chapter 69-02-03 Conferences

N.D. Admin. Code 69-02-03-01 To adjust or settle proceedings

Conferences may be held to expedite the orderly conduct and disposition of the hearing.

Conferences may concern the following:

1.Simplification of issues.

2.Necessity or desirability of amendments to the pleadings.

3.Simultaneous exchange or imposition of a timetable for the exchange of printed testimony and exhibits proposed to be offered in evidence.

4.Admissions or stipulations of facts not in dispute.

5.Admissions and stipulations of authenticity of documents.

6.Limitation of the number of witnesses.

7.Limitation of the time allowed for the testimony of witnesses.

8.Offers and proposals of settlement and adjustment.

9.Other matters that may be necessary or desirable to expedite the proceeding.

10.Unaccepted proposals of settlement, adjustment, procedure, or stipulations are privileged and not admissible in evidence against any party.

History

• Law Implemented: NDCC 28-32-08.1, 28-32-08.3, 49-01-07

N.D. Admin. Code 69-02-03-02 To expedite hearings

Repealed effective September 1, 1992.

N.D. Admin. Code 69-02-03-03 Initiation of conferences

Upon its own motion or the motion of any party, the commission or a hearing officer may direct that a conference be held and order the parties to appear. Due notice of the time and place of the conference must be given to all parties.

History

• Law Implemented: NDCC 28-32-08.1, 49-01-07

N.D. Admin. Code 69-02-03-04 Conference results

Upon conclusion of the conference, the results must be immediately reduced to writing. The original and seven copies must be filed with the commission. Stipulations may be received in evidence at a hearing and, when and so received, shall be binding on the parties with respect to the matters concerned. All stipulations are subject to commission approval.

History

• Law Implemented: NDCC 28-32-08.1, 28-32-08.3, 49-01-07

Chapter 69-02-04 Hearings

N.D. Admin. Code 69-02-04-01 Notice

In those proceedings in which a hearing is to be held, the commission will assign a time and place for hearing. Notice of the hearing must be posted in the office of the commission, and must be served on the parties and other persons entitled to receive notice at least twenty days prior to the date set for the hearing except in cases of emergency or as otherwise provided by law.

In any proceeding, except rulemaking proceedings, involving the rights of persons who are members of the public generally, notice of hearing must be given by legal publication in the North Dakota daily newspaper of the affected area. Notice must be published at least twenty days prior to the date of the hearing.

An electric, gas, or telecommunications public utility shall provide individual customer notice as required below by billing insert, newsletter, or other appropriate method approved by the commission.

The notice must indicate the place and date of the commencement of any hearing, informal hearing, or public input session that has been ordered by the commission, and that the public is invited to attend.

Subject to the power of the commission to modify its contents and when applicable, the notice must include a summary sheet describing the absolute dollar and percentage impact of any proposed rate or price changes by the various classes of services offered by the utility and must include a list of the utility's business office locations where the proposed rate or price schedules and a comparison of present and proposed rates or prices can be examined by the public. The notice must also contain in bold type the following statement when applicable: The rate changes described in this notice have been requested by (specific utility).

For electric and gas utilities, individual customer notice is required for an application for approval of a rate increase, purchase or sale, merger, or acquisition filed by the utility, and applications by the utility for alternative regulation. For electric and gas utilities, the commission may require the utility to provide individual customer notice to potentially affected customers in other rate proceedings, complaint cases, advance determination of prudence cases, and fuel and purchased gas adjustment proceedings.

For telecommunications utilities, individual customer notice is required for an application for a certificate of public convenience and necessity resulting from the sale, merger, or acquisition of an incumbent telecommunications company. The commission may require a telecommunications utility to provide individual customer notice to potentially affected customers in complaint cases.

The individual customer notices required by this section are separate from and in addition to any other customer notices required by law or rule, unless the commission authorizes the utility to satisfy multiple notice requirements with one notice.

October 1, 2017.

History

• History: Amended effective October 1, 1980; September 1, 1982; September 1,1992; January 1, 2001;
• Law Implemented: NDCC 28-32-05, 28-32-08, 49-01-07

N.D. Admin. Code 69-02-04-02 Appearances

Each interested party shall enter an appearance at the beginning of the hearing by giving the party's name and address and briefly stating the capacity in which the party appears. All appearances must be noted on the record.

History

• History: Amended effective September 1, 1992; October 1, 2017.

N.D. Admin. Code 69-02-04-03 Continuance

After hearings are scheduled, continuances may be granted by the commission for good cause. A motion for continuance must be in writing, unless made at the commencement of a hearing, and must be filed with the commission, and served on each party. The motion must be made as far in advance of the date fixed for hearing as possible. The commission may effect a continuance upon its own motion.

When a substantive hearing officer is designated, the substantive hearing officer may rule on continuances unless the commission directs otherwise.

N.D. Admin. Code 69-02-04-04 Consolidation

The commission, upon its own motion or upon motion by any party, may order two or more proceedings involving a similar question of law or facts to be consolidated for hearing where rights of the parties or the public interest will not be prejudiced by the consolidation.

N.D. Admin. Code 69-02-04-05 Waiver of hearing - Shortened procedure

In any proceeding in which the commission is authorized to act after opportunity for hearing, opportunity is afforded by service of notice fixing a reasonable period of time within which any person desiring to be heard may file a protest or request for ahearing. If a protest or request for hearing is not filed within the time provided, the commission may dispose of the matter on the basis of the pleadings, other submittals, and the studies and recommendations of the staff. A party not requesting oral hearing in the party's pleading is deemed tohave waived a hearing for the purpose of the decision, but not for the purpose of applying for rehearing with respect to the decision. If a person requests a hearing but does not show good cause, the commission may determine the matter without a hearing.

History

• Law Implemented: NDCC 28-32-11.1, 49-01-07

N.D. Admin. Code 69-02-04-06 Order of procedure

In their respective hearing, the complainant, petitioner, or applicant shall open and close. In hearings on an order to show cause or involving investigation and suspension of rates, tariffs, or schedules, the respondent shall open and close. In all other hearings, the hearing officer may direct who shall open and close. When proceedings have been consolidated for hearing, the hearing officer shall designate who shall open and close. Intervenors shall follow the parties in whose behalf the intervention is made; where the intervention is not in support of an original party, the hearing officer shall designate at which stage the intervenor shall be heard. In proceedings where the evidence is materially within the knowledge or control of another party or participant, the foregoing order may be varied by the hearing officer.

N.D. Admin. Code 69-02-04-07 Hearing officer

When evidence is to be taken in a proceeding, either the commission, any member thereof, or one or more of its duly designated hearing officers may preside at the hearing. Hearing officers are designated as procedural or substantive.

1.Authority delegated. The hearing officer may:

a.Regulate the course of hearing.

b.Administer oaths.

c.Issue subpoenas.

d.Take depositions or cause depositions to be taken.

e.Receive evidence.

f.Rule upon offers of proof.

g.Hold conferences before or during hearings.

h.Dispose of procedural matters so long as the disposition does not involve a final determination of proceedings.

i.Certify any question to the commission for its consideration and disposition.

j.Exclude evidence.

k.Authorize any party to furnish and serve designated late filed exhibits within a specified time after the close of the hearing.

l.Authorize discovery.

m.Request or require that the parties file briefs, memoranda, or proposed findings of fact and conclusions of law, and set a schedule for filing and serving same.

n.Take any other action necessary or appropriate to discharge the duties vested in the hearing officer.

2.Limitations. In addition, substantive hearing officers shall issue recommended findings of fact, conclusions of law, and orders. Substantive hearing officers may rule on continuances unless the commission directs otherwise.

3.No hearing officer shall, in any proceeding for an adjudication required by statute to be determined on the record after opportunity for hearing, consult any person or party on any fact in issue unless the consultation is upon notice and opportunity for all parties to participate.

History

• Law Implemented: NDCC 28-32-08.1, 28-32-37, 28-32-12.2, 49-01-07

N.D. Admin. Code 69-02-04-08 Appeal to commission from ruling of hearing officer

An appeal may be taken to the full commission from a ruling of a hearing officer during the course of a hearing only where extraordinary circumstances necessitate a prompt decision by the commission to prevent detriment to the public interest. Any offer of proof made in connection with an objection taken to any ruling of the hearing officer rejecting or excluding proffered oral testimony must consist of a statement of the substance of the evidence which the offering party contends would be adduced by such testimony; and, if the excluded evidence refers to or consists of documentary evidence, a copy of it must be marked for identification and constitutes part of the offer of proof.

N.D. Admin. Code 69-02-04-09 Oral argument

1.Before hearing officer. The hearing officer may set a time for the presentation of oral argument when time permits and the nature of the proceedings, the complexity or importance of the issues, and the public interest warrant. The hearing examiner may impose appropriate time limits. Oral arguments will be transcribed and bound with the transcript of testimony.

2.Before the full commission. A request to present oral argument before the full commission may be made at any time. The commission will set the time for oral argument, if allowed, and may impose time limits upon the arguments.

N.D. Admin. Code 69-02-04-10 Briefs - Proposed findings of fact and conclusions of law

1.Each party to a proceeding may file proposed findings of fact and conclusions of law, briefs, or memoranda of law. However, the hearing officer may direct any party to file proposed findings of fact and conclusions of law, briefs, or memoranda of law.

2.The hearing officer will fix the time for the filing and service of proposed findings of fact and conclusions of law, briefs, or memoranda of law, and the order in which each shall be filed.

3.When it is ordered that proposed findings of fact and conclusions of law, briefs, or memoranda of law be filed and served, and where the party that initiated the proceeding fails to file and serve by the due date, the commission may dismiss the proceeding. Failure to file when due by an intervenor, protestant, or respondent may be considered a waiver of the right to participate further.

4.Exhibits should not be reproduced in a brief, but may be reproduced in an appendix to the brief. Every brief of more than twenty pages shall contain a subject index, with page references, and an alphabetical list of all citations with references to the pages where the citations appear. Briefs must be as concise as possible.

5.Briefs must be accompanied by a certificate showing service upon all parties who appeared at the hearing. An original and seven copies of each brief will be filed with the commission.

6.The time within which any act is required to be performed or may be performed will be computed in accordance with the North Dakota Rules of Civil Procedure.

Chapter 69-02-05 Evidence

N.D. Admin. Code 69-02-05-01 Rules of evidence

Evidence is admissible in accordance with the North Dakota Rules of Evidence. The commission or the hearing officer, however, may waive the rules of evidence where such waiver is necessary to ascertain the substantial rights of a party but only relevant evidence may be admitted. A waiver of the rules of evidence must be stated specifically. When objection is made to the admissibility of evidence, the hearing officer may receive the evidence subject to later ruling by the commission.

N.D. Admin. Code 69-02-05-02 Witnesses

Witnesses will be orally examined under oath unless their testimony is taken by deposition as provided in section 69-02-05-04. Written testimony of any witness may be received when properly supported by the oral testimony of its author on direct examination subject to cross-examination and motion to strike.

History

• Law Implemented: NDCC 28-32-06, 28-32-21.2, 49-01-07

N.D. Admin. Code 69-02-05-03 Subpoena

1.Subpoenas for the attendance of witnesses or for the production of documentary evidence, unless directed by the commission upon its own motion, will issue only upon written application.

2.A party must show the general relevance and reasonable scope of the evidence sought before a subpoena will issue for the production of documentary evidence. Subpoenas for the production of documentary evidence must be authorized in writing.

3.The cost of serving a subpoena must be paid by the party requesting it. Any witness who is subpoenaed under the provisions of this rule and who appears at the hearing must receive the samefees and mileage as witnesses in the district courts of this state, and the costs will be paid by the party at whose instance the witness appears. No witness fees will be allowed except on a subpoena.

History

• Law Implemented: NDCC 28-32-09, 49-01-07

N.D. Admin. Code 69-02-05-04 Depositions, interrogatories, and other discovery

Repealed effective July 1, 1998.

N.D. Admin. Code 69-02-05-05 Stipulations

The parties may agree upon all or part of the facts involved in the controversy. A stipulation must be in writing unless made orally at the hearing and may be received as evidence at the hearing.

History

• Law Implemented: NDCC 28-32-05.1, 49-01-07

N.D. Admin. Code 69-02-05-06 Documentary evidence

Where relevant and material evidence is embraced in a book, paper, or a document containing other matter not material or relevant, the offering party must plainly designate the relevant and material matter. If the other matter is so voluminous that it would unnecessarily encumber the record, it will not be received in evidence. It may be marked for identification and, if authenticated, the relevant and material matter may be read into the record, or copied and be received as an exhibit. All parties appearing at the hearing shall be afforded an opportunity to examine the entire book, paper, or document and offer in evidence any portion found to be material and relevant. Any matter contained in a report or other document on file with the commission may be offered in evidence by specifying the report, document, or other file containing the matter so offered.

N.D. Admin. Code 69-02-05-07 Exhibits

Exhibits must be on paper of good quality, be plainly legible and durable and may not exceed eight and one-half by eleven inches [21.59 by 28.21 centimeters]. If an exhibit exceeds the size limit, it is acceptable if it can be folded to conform to the size requirement. Whenever practicable, the sheets of each exhibit and lines of each sheet should be numbered, and, if the exhibit consists of five or more sheets, the first sheet or title page should contain a brief statement of what the exhibit purports to show with reference by sheet and line to illustrative or typical example contained in the exhibit. Whenever practicable, documents sponsored by a single witness should be assembled and bound together, suitably arranged, and indexed so that they may be identified and offered as one exhibit. The source of all material contained in any exhibit should be shown.

1.Copies. Seven copies of each exhibit must be provided, in addition to a copy for each party.

2.Prefiling. The commission may permit or require the filing and serving of exhibits in advance of the hearing in order to enable participants to prepare cross-examination.

N.D. Admin. Code 69-02-05-08 Official notice

The commission may take notice of any fact in its records and files, to which reference is made on the record at the hearing and any fact judicially noticed by the courts of this state. Official notice will be taken without offer or production of that portion of any tariff or schedule which is the subject matter of an order of investigation or suspension.

History

• Law Implemented: NDCC 28-32-06, 49-01-07

N.D. Admin. Code 69-02-05-09 Former employees

Except with the written permission of the commission, no former employee of the commission or member of the attorney general's staff assigned to the commission may appear in a representative capacity or as an expert witness on behalf of other parties at any time within six months after severing the employee's or member's association with the commission, nor may the employee or member appear after the six-month period in any proceeding in which the employee or member previously took an active part when associated with the commission.

N.D. Admin. Code 69-02-05-10 Interrogatories to parties

Repealed effective September 1, 1992.

N.D. Admin. Code 69-02-05-11 Ex parte communications

Ex parte communications, as defined in North Dakota Century Code section 28-32-37, are strictly prohibited. Any ex parte written communication to the commission must be filed with the executive secretary of the commission who shall disclose the communications to the parties and place the communication in a public file associated with the pending proceeding, but separate from the record material upon which the commission can rely in reaching its decision.

History

• History: Effective September 1, 1992.
• Law Implemented: NDCC 28-32-37, 49-01-07

N.D. Admin. Code 69-02-05-12 Interrogatories in cases under North Dakota Century Code title 49

Any party to a public utility proceeding under North Dakota Century Code title 49 may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Each interrogatory must be answered separately and fully in writing, unless it is objected to, in which event the objecting party shall state the reasons for the objection and shall answer to the extent the interrogatory is not objectionable.

The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections, if any, within ten business days after the service of the interrogatories. A shorter or longer time may be directed by the commission or, in the absence of such direction, agreed to in writing by the parties. Any ground for an objection to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the party's failure to object is excused by the commission for good cause shown. A party answering interrogatories shall set out the interrogatory immediately preceding the answer.

History

• History: Effective April 1, 2013.
• Law Implemented: NDCC 49

Chapter 69-02-06 Reopening and Reconsideration

N.D. Admin. Code 69-02-06-01 Petition to reopen

At any time after the conclusion of a hearing, but before the final order is issued or a rule is adopted, any party may file a petition to reopen the proceeding for the purpose of taking additional evidence.

1.Contents. The petition must set forth clearly the facts claimed to constitute the grounds requiring reopening of the proceeding, including any material changes of fact or law alleged to have occurred since the conclusion of the hearing.

2.Service. A copy of the petition to reopen must be served by the petitioning party upon all parties and a certificate to that effect must be attached to the petition when filed with the commission. The original and seven copies must be filed with the commission.

3.Responses. Within ten days following the service of a petition to reopen, any other party may file a response. The response must be served on the parties and the original response and certificate of service and seven copies must be filed with the commission. Failure to file a response is a waiver of any objection to the granting of the petition.

4.Order to reopen. If the commission has reason to believe the conditions of fact or law have so changed as to require, or that public interest requires, the reopening of a proceeding, the commission may issue an order to reopen.

History

• History: Amended effective September 1, 1992.
• General Authority: NDCC 28-32-02
• Law Implemented: NDCC 49-01-07

N.D. Admin. Code 69-02-06-02 Petition for reconsideration

1.Time for filing. A petition for reconsideration must be filed within fifteen days after notice of the decision has been given under North Dakota Century Code section 28-32-13.

2.Content. The petition must state the specific grounds upon which the petition rests or a statement of any further showing to be made. The petition must also state if a rehearing or oral argument is requested.

3.Service. A petition must be served by the petitioner upon all parties and a certificate to that effect must be attached to and filed with the commission at the time the petition is filed. The original and seven copies must be filed with the commission.

4.Responses. Within ten days after the service of the petition, any party to the proceeding may file with the commission an original and seven copies of the party's response. Failure is a waiver of any objection to the granting of the petition.

History

• History: Amended effective September 1, 1992.
• General Authority: NDCC 28-32-02
• Law Implemented: NDCC 49-01-07

N.D. Admin. Code 69-02-06-03 Appeal

Repealed effective September 1, 1992.

Chapter 69-02-07 Rules

N.D. Admin. Code 69-02-07-01 Generally

An application for the amendment, repeal, or adoption of any commission rule shall state the precise wording of the proposed rule and shall state briefly the reasons for amendment, repeal, or adoption. The commission may, at any time, propose adoption, amendment, or repeal of any rule.

Hearings will be held on all proposed substantive rules and may also be held on proposed procedural rules.

History

• History: Amended effective December 1, 1990; September 1, 1992.
• General Authority: NDCC 28-32-02
• Law Implemented: NDCC 49-01-07

N.D. Admin. Code 69-02-07-02 Notice

1.The commission will issue a notice that the rules are proposed and set for hearing which will include:

a.A short, specific explanation of the proposed rule;

b.A brief explanation of the purpose of the proposed rule;

c.A determination of whether the proposal impacts the regulated community in excess of fifty thousand dollars;

d.A location where the text of the proposed rule may be reviewed;

e.Notice to interested persons of the opportunity to submit written comments and to appear and testify at the hearing to offer oral testimony;

f.The address to which written comments may be sent;

g.The address and telephone number at which a copy of the proposed rules and regulation analysis may be requested; and

h.The date, time, and place of the hearing.

2.The commission will publish an abbreviated newspaper notice in each official county newspaper in the state.

3.The commission will file the notice of hearing and a copy of the proposed rules with the legislative council.

4.The public comment period on the proposed adoption, amendment, or repeal of any rule under this article will close ten days after conclusion of the public hearing, unless extended by the commission.

5.The commission will consider all written comments and oral testimony received before adoption, amendment, or repeal of any rule under this article and make a written record of its consideration.

History

• History: Effective December 1, 1990; amended effective January 1, 2001; October 1, 2017.
• General Authority: NDCC 28-32-02
• Law Implemented: NDCC 28-32-02, 49-01-07

Chapter 69-02-08 Meetings

N.D. Admin. Code 69-02-08-01 Generally

The commission must conduct open meetings at which the public may attend but will not be permitted to participate. The agenda for each open meeting will be made available in advance of the session. Items may be added to, or stricken from, the agenda without further notice. Public documents relating to the items on the agenda may be examined in the commission offices. As permitted by law, the commission may conduct closed meetings to consider quasi-judicial proceedings, which include major rate cases and certificate proceedings for transmission lines and energy conversion plants. The commission will continue to report the results of these deliberations in written opinions and orders resolving each case.

History

• General Authority: NDCC 28-32-02
• Law Implemented: NDCC 49-01-07

Chapter 69-02-09 Procedures for Protecting Information from Disclosure

N.D. Admin. Code 69-02-09-01 Application to protect information

Except as provided in section 69-02-09-13, a person requesting protection of information in an administrative proceeding or in a response to a commission request for information shall file an application with the commission. The application must include at least the following:

1.A general description of the nature of the information sought to be protected.

2.The specific law or rule on which protection is based.

3.If the basis for protection is that the information is trade secret:

a.An explanation of why the information derives independent economic value, actual or potential, from not being generally known to other persons;

b.An explanation of why the information is not readily ascertainable by proper means by other persons;

c.A general description of the persons or entities that would obtain economic value from disclosure or use of the information;

d.A specific description of known competitors and competitors' goods and services that are pertinent to the tariff or rate filing; and

e.A description of the efforts used to maintain the secrecy of the information.

4.If the basis for protection is a reason other than that the information is trade secret, the specific basis or bases upon which the information qualifies for protection.

5.A redacted public version of the information, unless this requirement is waived by the commission. The amount redacted must be as minimal as possible. If it is not possible to file a redacted public version, a specific written request for waiver of the requirement and the reasons for requesting a waiver must be filed.

History

• History: Effective March 1, 1994; amended effective April 1, 2015; October 1, 2017.

N.D. Admin. Code 69-02-09-02 Filing of application

1.The application must be addressed to and filed with the executive secretary of the commission.

2.The protected material filed with the application or pursuant to section 69-02-09-13 must be separately bound and placed in a sealed envelope, or other appropriate, sealed container, which must be labeled: PROTECTED INFORMATION - PRIVATE. An original and seven copies of the public portion of the application must be filed unless this requirement is waived by the commission. Only one copy of the protected material may be filed.

History

• History: Effective March 1, 1994; amended effective April 1, 2015; October 1, 2017.

N.D. Admin. Code 69-02-09-03 Processing the application

When an application for protection of information is filed, the commission staff shall examine the information and application, and file and serve a response that includes a recommendation on whether the information qualifies for protection. If the basis for requesting protection is that the information is trade secret, the staff response must include a recommendation on whether the information is relevant and is trade secret, under the definition of trade secret in North Dakota Century Code section 47-25.1-01. The commission will make a determination on the application from the application, the recommendation, and any response received from those served.

N.D. Admin. Code 69-02-09-04 Protective order

Upon a determination that information qualifies for protection, the commission shall issue a protective order limiting disclosure.

N.D. Admin. Code 69-02-09-05 Request for hearing - Who may request - Time - Burden of proof

1.Upon a determination that the information does not qualify for protection, the applicant will be notified and has seven days to request a hearing before the commission, or obtain appropriate injunctive relief from the courts. If no hearing is requested or the commission is not otherwise restrained, the information will become part of the public record without protection. The burden of proof in such a hearing is on the party seeking to prevent disclosure.

2.If any person disagrees with the designation of information as protected or with its nondisclosure, the person shall first attempt to informally dispose of the dispute with the party seeking to prevent disclosure. If the dispute cannot be resolved, any person may request a hearing before the commission to determine the protected status.

N.D. Admin. Code 69-02-09-06 Request for hearing - Contents

A request for hearing must be in writing. An original and seven copies of the request must be filed with the executive secretary of the commission. The request must identify the reason the information should be disclosed, or not protected. In any hearing the burden of proof is on the party seeking to prevent disclosure.

N.D. Admin. Code 69-02-09-07 Viewing protected information

1.The commission and its staff, and any outside counsel retained by the commission, may view protected information filed with the commission at any time. However, the commission and its staff are bound by the terms of these rules to keep the information confidential and must execute the protective agreement as required in subsection 3. The originator (applicant for protected status) may view the information at any time without the necessity of executing the protective agreement required in subsection 3.

2.Others who wish to view protected information, including experts who are not regular full-time employees of the commission, and opposing counsel and experts, may do so only after authorization from the commission. The commission may grant authorization when the person wishing to view the information submits a written request that includes all of the following:

a.The name and address of the person who will view the information;

b.Identification, as specifically as possible, of the information requested;

c.A showing of good cause why the information is needed;

d.Identification of the purpose of the review;

e.Identification of the intended use of the information; and

f.An estimate of the time needed for review.

The requesting person shall file the original written request with the commission and serve it upon the originator at least ten days prior to the time the person desires to view the information unless the originator agrees to a shorter notice period.

3.Any person reviewing protected information filed with the commission shall execute a protective agreement form provided by the commission. A new protective agreement form must be executed for each work day in which information is viewed.

4.The commission shall disclose the information unless:

a.The commission is prohibited by law from disclosure under any circumstance; or

b.The originator shows good cause why disclosure should not be granted.

When disclosed, protected information may not be removed from commission offices and must be returned for secure filing prior to the end of the workday on which the information was disclosed, and may be used only for purposes of the proceeding or case.

N.D. Admin. Code 69-02-09-08 References to protected information at hearings

To the extent that reference is made to any protected information by a person afforded access to such information during any aspect of the proceeding, the information should be referenced only by its title or its exhibit identification, or in a manner that does not unnecessarily disclose the confidential information. If specific disclosure of the confidential information is necessary during oral testimony or argument, it must be on such prior notice as is feasible and, in any event, on sufficient notice to clear the hearing room of persons not bound by this chapter.

N.D. Admin. Code 69-02-09-09 Protection of protected information

Any part of the record of a proceeding containing protected information, including exhibits and transcript pages, must be protected unless otherwise ordered by the commission. If a commission order requires a finding based on protected information, the order must reference the confidential nature of the finding and a separate, confidential document must be prepared to state fully the finding of fact and the protected information relied upon to support the finding.

N.D. Admin. Code 69-02-09-10 Copies of information used during hearing

Copies of the protected information may be made for use during a hearing for persons bound by these rules. If copies are made for hearing purposes, they must be numbered. Upon the completion of the hearing, all copies of the information must be returned to the disclosing party or commission staff.

N.D. Admin. Code 69-02-09-11 Documents certified on appeal

When an order of the commission is appealed and the documents are certified to court, copies must be made of the protected information. The copies of protected information must be placed in a sealed envelope, or other appropriate, sealed container, and labeled: "PROTECTED INFORMATION - PRIVATE". The originals of the protected information must be retained in the commission's protected information file. When the court issues its decision and returns the case record to the commission, the copies of protected information must be filed with the originals in the commission's protected information file.

N.D. Admin. Code 69-02-09-12 Disposal of protected information

Except for information filed under section 69-02-09-13, when a case or file containing protected information has been closed for one year the commission will dispose the protected information by shredding.

History

• History: Effective January 1, 2001; amended effective April 1, 2015.

N.D. Admin. Code 69-02-09-13 Information filed by telecommunications companies

Information identified in subsections 1 through 5 of this section is protected without need for the originator to file an application and without further action by the commission, unless the commission orders otherwise. Subsections 1 through 4 of section 69-02-09-01, subsection 1 of section 69-02-09-02, sections 69-02-09-03, 69-02-09-04, and subsection 1 of section 69-02-09-05 do not apply to information filed under this section.

1.Detailed information concerning telecommunications infrastructure projects.

2.Disaggregated data on provisioned volumes of local services by service type and local exchange.

3.Disaggregated data on provisioned volumes and associated revenue of switched access traffic by jurisdiction or local exchange.

4.Detailed information on service outages as defined in title 47, Code of Federal Regulations,

part 4, section 4.5, in effect as of January 30, 2017.

5.Financial information required by the federal communications commission to be copied to the commission, accompanied by the filing of a copy of the federal communications commission's protective order for that information.

History

• History: Effective April 1, 2015; amended effective October 1, 2017.

Chapter 69-02-10 Arbitration

N.D. Admin. Code 69-02-10-01 Definitions

As used in this chapter:

1."Act" means the federal Telecommunications Act of 1996 [Pub. L. No. 104-104].

2."Arbitration" is a dispute resolution process by which a neutral third party renders a decision on disputed issues which is binding on the parties, subject to commission approval.

3."Arbitrator" is the term used to identify the arbitration decisionmaker.

4."Commission" means the North Dakota public service commission.

5."Entire package final offer arbitration" is a procedure under which the arbitrator must select, without modification, the entire proposal of one of the parties.

6."Final offer arbitration" is a procedure under which each party submits a final offer concerning the issues subject to arbitration, and the arbitrator selects, without modification, one of the final offers by the parties to the arbitration, or portions of both such offers.

7."Issue-by-issue final offer arbitration" is a procedure under which the arbitrator must select, without modification, on an issue-by-issue process, one of the proposals of either party on each issue.

8."Modified final offer arbitration" is a procedure under which each party submits a final offer concerning the issues subject to arbitration, and the arbitrator may select and modify one of the final offers by the parties to the arbitration, or portions of both such offers.

History

• History: Effective July 1, 1997; amended effective January 1, 2001.

N.D. Admin. Code 69-02-10-02 Scope of rules

These rules govern arbitrations of open or unresolved issues which arise under sections 251 and 252 of the Act, where one or more of the parties to a particular negotiation petition for arbitration.

N.D. Admin. Code 69-02-10-03 Representation

The parties may be represented by counsel. The attorney for a party may act on the party's behalf.

N.D. Admin. Code 69-02-10-04 Commencement of arbitration

The arbitration process is commenced with the filing of a petition with the commission pursuant to

section 252(b)(1) of the Act by any party to the negotiation process within the time period designated in the Act. The arbitration process is deemed to begin on the date the petition is filed with the commission.

The petitioning party must deliver a copy of the petition with proof of service on all parties to the negotiation on the day the petition is filed with the commission.

N.D. Admin. Code 69-02-10-05 Contents of petition

The petition must be filed in accordance with the commission's rules of practice and procedure. The petition must include the following information:

1.The name, address, telephone number, e-mail address, and fax number of the party making the request.

2.The name, address, telephone number, e-mail address, and fax number of the other party to the negotiation.

3.The name, address, telephone number, e-mail address, and fax number of each representative of the parties who are participating in the negotiation.

4.A summary of the negotiation history including mediation proceedings.

5.A comprehensive statement identifying all unresolved issues including all relevant documentation concerning those unresolved issues.

6.A statement of the position of each of the parties concerning the unresolved issues including all relevant documentation pertaining to those issues.

7.A statement identifying the issues that have been resolved through voluntary negotiation.

N.D. Admin. Code 69-02-10-06 Relevant documentation

Relevant documentation, for purposes of an arbitration proceeding, includes:

1.A brief or other written statement addressing the disputed issues, applicable state or federal law, and applicable state or federal regulations.

2.In the case of price disputes, the incumbent local exchange company's proposed rates or charges, and all relevant cost studies and supporting documentation.

3.Conditions that the parties request be imposed together with justification for the requested conditions.

4.A proposed schedule for implementation of the terms and conditions of the agreement.

5.Proposed interconnection agreements submitted by both the petitioner and the respondent.

6.All other documents relevant to the dispute, including copies of all documents intended to be introduced as evidence in the proceeding.

N.D. Admin. Code 69-02-10-07 Response to petition

Under section 252(b)(3) of the Act, a nonpetitioning party to a negotiation may respond to a petition for arbitration within twenty-five days after the commission receives the petition, and may present additional issues and provide additional relevant documentation it wishes to have considered pertaining to any of the issues. The party that files a response to a petition for arbitration with the commission must deliver a copy of the response with proof of service on all parties to the negotiation at the time the response is filed with the commission.

N.D. Admin. Code 69-02-10-08 Parties to provide list of arbitrators

The party or parties that request arbitration shall provide the commission, within no less than fifteen days from when the petition for arbitration is filed, names and qualifications of at least two qualified neutral arbitrators that are acceptable to all parties to the negotiation. In the event the parties are unable to agree on the acceptability of arbitrators, each party shall submit names and qualifications of at least two arbitrators that would be acceptable to that party.

N.D. Admin. Code 69-02-10-09 Selection of the arbitrator

The commission shall select and appoint a qualified arbitrator from the list provided by the parties.

If the parties are unable to comply with the requirements of section 69-02-10-08, the commission shall appoint an arbitrator it determines to be qualified who may be a person from the commission's staff.

The commission may designate one or more commission staff personnel or an outside consultant to serve as technical adviser to the arbitrator.

N.D. Admin. Code 69-02-10-10 Appointment of an arbitrator

The commission shall appoint the arbitrator within twenty days after a petition has been filed.

N.D. Admin. Code 69-02-10-11 Ex parte communications

A party may not have any ex parte communication with the arbitrator or technical advisor regarding any issue related to the arbitration except for scheduling purposes.

History

• Law Implemented: NDCC 28-32-05.1, 28-32-37, 49-01-07

N.D. Admin. Code 69-02-10-12 Payment of costs and fees

The parties to the arbitration proceeding shall contract directly with the arbitrator for the arbitration services and shall pay all costs and fees of the arbitrator and outside consultants retained to assist the arbitrator. Costs associated with the arbitration process which are incurred by the commission or commission staff in the arbitration proceeding must be paid by the telecommunications companies involved in the proceeding under subsection 6 of North Dakota Century Code section 49-21-01.7.

History

• Law Implemented: NDCC 28-32-05.1, 49-01-07, 49-21-01.7

N.D. Admin. Code 69-02-10-13 Procedural officer

The arbitrator appointed by the commission, in addition to having the authority to arbitrate the disputed issues, has the authority of a hearing officer and will conduct the procedural aspects of the arbitration proceeding.

History

• Law Implemented: NDCC 28-32-05.1, 28-32-08.1, 28-32-08.5, 49-01-07

N.D. Admin. Code 69-02-10-14 Prehearing conference

The arbitrator shall schedule a prehearing conference to be held no later than two hundred days from the date of making the request for negotiation. The purpose of the prehearing conference is to discuss a procedural schedule that conforms to the requirements of the Act, North Dakota laws and rules, and commission issued procedural order and preliminarily discuss areas of testimony, discuss the scope and timing of discovery, determine the timeline for filing testimony, and identify, simplify, and limit issues. The arbitrator shall issue an order following the prehearing conference setting forth a procedural order for the proceeding and identifying the issues in dispute.

History

• Law Implemented: NDCC 28-32-05.1, 28-32-08.3, 49-01-07

N.D. Admin. Code 69-02-10-15 Notice of arbitration hearing

Within fifteen days after the prehearing conference, the commission shall issue a notice of hearing specifying the disputed issues that are the subject of the arbitration proceeding. The notice of arbitration hearing must be issued as required under North Dakota Century Code Chapter 28-32.

Arbitration proceedings must be open to the public.

History

• Law Implemented: NDCC 28-32-05, 28-32-05.1, 49-01-07

N.D. Admin. Code 69-02-10-16 Participation in the arbitration process

Participation in the arbitration process must be limited to the petitioning party, the responding party, and the commission staff. Commission staff personnel may participate in both advocacy or advisory roles. In the event staff participates in an advocacy role, the commission will employ its split staff procedures to designate advocacy and advisory staff members. An individual staff person may not be permitted to serve in both an advocacy and advisory role.

N.D. Admin. Code 69-02-10-17 Confidentiality

The petition, response, accompanying materials, and all other documentation provided to the commission are subject to the North Dakota open records laws. A party may request trade secret protection for information by filing an application with the commission under the provisions of chapter 69-02-09.

History

• Law Implemented: NDCC 28-32-06, 47-25.1

N.D. Admin. Code 69-02-10-18 Exchange of information

The parties shall cooperate in good faith in the voluntary, prompt, and informal exchange of all documents and other information relevant to the disputed issues, subject to claims of privilege or confidentiality.

1.The parties shall exchange copies of all documents in their possession or control on which they rely in support of their positions or which they may introduce as exhibits at the arbitration hearing. The parties shall serve the documents within twenty days after the response to the petition is filed with the commission, unless otherwise agreed or such other time is ordered by the arbitrator.

2.The parties may offer other evidence that is relevant and material to the issues in dispute. The parties must be required to produce such additional evidence as the arbitrator deems necessary to understand and determine the issues in dispute.

3.The parties shall exchange a preliminary list of witnesses they expect to call at the arbitration hearing within twenty days after the response to the petition is filed, unless otherwise ordered by the arbitrator or agreed to by the parties. The preliminary list must identify expert witnesses and the subject matter of their testimony. Within seven calendar days prior to the hearing, the parties shall provide to each other and to the arbitrator a final list of witnesses they intend to call, including experts, together with a brief description of the testimony of each witness and the estimated time for the witness's direct testimony. In addition, within seven calendar days prior to the hearing, the parties shall provide to each other and to the arbitrator a list of exhibits intended to be used at the hearing together with copies of all exhibits not previously provided.

4.Within seven calendar days prior to the hearing, each party shall submit concise written statements of the party's position, including summaries of the facts and evidence a party intends to present, discussion of the applicable law, and the basis for the requested decision or denial of relief sought.

N.D. Admin. Code 69-02-10-19 Formal discovery

The provisions of North Dakota Century Code chapter 28-32 control discovery in arbitration proceedings. In the event any party fails or refuses to informally exchange requested information and documents, the other parties may:

1.Submit a request to conduct discovery in accordance with North Dakota Century Code section 28-32-09.

2.Submit a request to the arbitrator to compel responses to reasonable discovery requests.

History

• Law Implemented: NDCC 28-32-05.1, 28-32-09, 49-01-07

N.D. Admin. Code 69-02-10-20 Filing of direct testimony

The parties to the arbitration proceeding shall file prepared written testimony relating to all of the disputed issues in the proceeding within the time frame established in the prehearing conference order.

N.D. Admin. Code 69-02-10-21 Production of documents and other discovery materials

Any party to the arbitration proceeding that receives a discovery request from another party or from the arbitrator shall produce all discoverable information within the time period established in these rules or the procedural order. If any party refuses or fails unreasonably to respond on a timely basis to any reasonable request, the arbitrator may proceed on the basis of the best information available to the arbitrator from whatever source derived under section 252(b)(4)(B) of the Act.

N.D. Admin. Code 69-02-10-22 Testimony of witnesses

All witnesses shall present their testimony at the hearing under oath. The witnesses shall authenticate their prefiled testimony and be subjected to direct examination and cross-examination.

History

• Law Implemented: NDCC 28-32-05.1, 28-32-11, 49-01-07

N.D. Admin. Code 69-02-10-23 Evidence

The arbitrator will consider evidence relevant and material to the dispute, giving the evidence such weight as the arbitrator determines is appropriate. Exhibits to the record may be offered by either party and may be received into evidence by the arbitrator. The admissibility of evidence shall be guided by the applicable provisions of North Dakota Century Code chapter 28-32.

History

• Law Implemented: NDCC 28-32-05.1, 28-32-06, 49-01-07

N.D. Admin. Code 69-02-10-24 Continuation of mediation

The parties may at any time return to mediation to attempt to resolve disputed issues and the parties may involve the arbitrator in such mediation efforts. The participation of the arbitrator in such mediation efforts does not disqualify the arbitrator from continuing in the arbitration process.

N.D. Admin. Code 69-02-10-25 Transcript of the hearing

A stenographic record of each arbitration hearing must be made. The arbitrator may require an expedited copy of each hearing to be filed with the commission. The commission shall designate the court reporter for the proceeding. The parties shall pay the fees and costs of the reporter including the costs for preparing all transcripts directly to the court reporter.

N.D. Admin. Code 69-02-10-26 Commission to determine final offer arbitration process

The arbitrator shall use final offer arbitration or modified final offer arbitration as directed by the commission, except as otherwise provided in this section:

1.At the discretion of the arbitrator, the final offer arbitration process may take the form of either entire package final offer arbitration or issue-by-issue final offer arbitration.

2.Negotiations between the parties may continue after final arbitration offers are submitted and the parties may submit subsequent final offers following such negotiations.

3.The arbitrator may allow up to fifteen days after submission of the initial final offers before making a decision in order to provide the opportunity for parties to conduct postoffer negotiations.

4.The arbitrator may request the commission to change the final arbitration process at any time prior to issuance of the arbitrator's decision.

History

• History: Effective July 1, 1997; amended effective January 1, 2001.

N.D. Admin. Code 69-02-10-27 Filing of briefs and final offer arbitration agreements

The petitioner and the respondent shall each file a posthearing brief and a final offer arbitration agreement no later than ten days after the filing of the hearing transcript. The hearing officer has the discretion to shorten the time for filing. The posthearing briefs of each party must summarize all relevant portions of its final offer arbitrated agreement and cite legal authority and evidence to support the adoption of its agreement.

N.D. Admin. Code 69-02-10-28 Contents of final offers

Final offers submitted by the parties must:

1.Meet the requirements of section 251 of the Act and all rules prescribed by the federal communications commission pursuant to that section.

2.Establish rates for interconnection, services, or access to unbundled network elements according to section 252(d) of the Act, including all rules prescribed by the federal communications commission pursuant to that section.

3.Provide a schedule for implementation of the terms and conditions by the parties to the agreement. In the event a final offer of one or more of the parties fails to comply with the requirements of this section, the arbitrator may take the action necessary to result in an arbitrated agreement that satisfies the requirements of section 252(c) of the Act, including requiring the parties to submit new final offers or adopting a result not submitted by any party that is consistent with the requirements of section 252(c) of the Act and rules prescribed by the federal communications commission pursuant to that section.

N.D. Admin. Code 69-02-10-29 Arbitrator's decision

The arbitrator shall issue an arbitrator's decision which shall constitute resolution of the issues submitted for arbitration, subject to final commission approval. The arbitrator's decision shall include:

1.A summary of the material evidence presented;

2.A discussion of the issues incorporating the respective positions of each of the parties;

3.A proposed agreement of the arbitrated issues; and

4.The final recommendation of the arbitrator.

The arbitrator's decision shall be issued no later than nine months from the date of the request for negotiation.

N.D. Admin. Code 69-02-10-30 Submission of an interconnection agreement

The parties shall jointly file with the commission an agreement incorporating the provisions adopted through negotiation and arbitration within thirty days after the filing of the arbitrator's decision. The combined agreement will be referred to as the interconnection agreement.

N.D. Admin. Code 69-02-10-31 Public comments

Any person may file written comments on the interconnection agreement within fifteen days of the date of filing of the agreement with the commission. Each of the arbitrating parties may also file comments within the same time frame.

N.D. Admin. Code 69-02-10-32 Commission review

Within thirty days following the filing of the interconnection agreement, the commission shall issue a decision approving or rejecting the agreement.

N.D. Admin. Code 69-02-10-33 Applicable laws and rules

The arbitration procedure must be governed by the provisions of the Telecommunications Act of 1996, Public Law No. 104-104, 101 Stat. 56 (1996); the North Dakota Administrative Practices Act;

North Dakota Century Code chapter 28-32; the commission's rules of practice and procedure; North Dakota Administrative Code article 69-02; and the commission issued guidelines and procedural orders.

Chapter 69-02-11 Mediation

N.D. Admin. Code 69-02-11-01 Definitions

As used in this chapter:

1."Act" means the federal Telecommunications Act of 1996 [Pub. L.No. 104-104].

2."Commission" means the North Dakota public service commission.

3."Mediation" means an informal, confidential, and nonadversarial process by which a neutral third party assists the parties in reaching their own settlement by enhancing communication, promoting understanding, focusing the parties on the issues, and seeking creative problem solving.

4."Mediator" means a qualified, neutral, or impartial third party, who assists the parties in reaching a voluntary agreement.

N.D. Admin. Code 69-02-11-02 Mediation request

Under section 252(a)(2) of the Act, any party negotiating an agreement for interconnection, services, or network elements pursuant to section 251 of the Act, may at any point in the negotiation request the commission to participate in the negotiation and to mediate any difference between the parties arising in the course of the negotiation.

1.Parties are not required to seek mediation by the commission and may employ the services of a private mediator at their own expense.

2.A copy of the request for negotiation must be filed with the commission at the time the request is sent to the incumbent local exchange carrier.

3.The party that files a request for mediation with the commission shall deliver a copy of the request with proof of service on all parties to the negotiation on the day the request is filed with the commission.

N.D. Admin. Code 69-02-11-03 Appointment of a mediator

The commission shall appoint a mediator within ten days after a request is filed.

1.The parties may select a mutually agreeable mediator and inform the commission in writing of the name and qualifications of the mediator. The commission shall appoint the mediator selected by the parties unless the commission determines for good cause that the mediator should be disqualified.

2.In the event the mediator selected by the parties is disqualified or the parties fail to select a mutually agreeable mediator, the commission may appoint a member of its own staff or may contract with a third party to provide mediation services.

3.If the parties select a mediator or demand that mediation services be provided by a third party, the parties shall contract for the mediation services and shall be responsible for payment of the services. The commission may designate one or more staff personnel to provide technical assistance to the mediator.

4.Costs associated with the mediation process which are incurred by the commission shall be paid by the telecommunications companies involved in the proceeding under subsection 6 of North Dakota Century Code section 49-21-01.7. Costs incurred by the parties in contracting for third-party mediation are not costs incurred by the commission and must be paid by the parties.

5.The mediator must remain impartial and must withdraw from the mediation process if the mediator's impartiality is compromised. A commission employee who serves as the mediator will not be permitted to participate in the arbitration or approval process for the same agreement, unless the parties consent.

History

• Law Implemented: NDCC 28-32-05.1, 49-01-07, 49-21-07

N.D. Admin. Code 69-02-11-04 Mediation procedure

The mediation process is an informal, confidential, and nonadversarial process in which an impartial person, the mediator, assists the parties in efforts to resolve differences between them. The mediator has no authority to compel a resolution.

1.To the extent there is a conflict between these guidelines and the commission's rules of practice and procedure, the commission suspends its rules of practice and procedure under the authority of section 69-02-01-11.

2.Section 251(c)(1) of the Act imposes a duty on the parties to negotiate in good faith. For purposes of these rules, the duty to negotiate in good faith means a willingness to meet at reasonable times and at reasonable places with the intent and purpose of providing and sharing of information necessary to accomplish meaningful negotiation, cooperating in the negotiation process, and to negotiate with an attitude of openness and willingness to achieve a negotiated agreement. The duty to negotiate in good faith does not mean that the parties must reach agreement on any or all items being negotiated.

3.Parties to the mediation process may be represented by counsel or representatives of each party's choice. All parties shall provide to each other and to the mediator, in advance of the initial mediation session, the name, address, occupation, and telephone number of their counsel or representative.

4.Within fifteen days of the filing of the request for mediation, each party shall submit to the mediator a written statement summarizing the dispute and the issues or points in conflict, and the party's position on each point in conflict. The mediator may request such additional information the mediator determines is necessary to familiarize the mediator with the dispute.

5.Within ten days of the filing of the summary statements, the mediator shall convene the initial mediation conference. The purpose of the initial conference is to establish a procedural schedule for the process, and to attempt to identify, simplify, and limit issues to be resolved. In addition, each party will be expected to informally present its position to the mediator.

6.The mediator will conduct the mediation sessions and will control all procedural aspects of the mediation. The mediator will schedule mediation sessions in consultation with the parties. The parties are expected to cooperate fully with the mediator.

7.Participation in mediation proceedings is restricted to the parties to the mediation, unless otherwise mutually agreed to by the parties and the mediator. Mediation proceedings are closed to the public.

8.The mediator may meet and communicate individually with the parties or their attorneys in an attempt to bring the disputing parties closer to agreement and may request that the parties not communicate directly with each other without the mediator's concurrence.

9.The mediation process is confidential to the extent permitted by law. No stenographic record of the proceedings or any part thereof may be taken.

10.The mediator shall not provide legal advice to the parties. The mediator's statements as to law or policy are not binding on the commission.

11.The parties shall cooperate in the exchange of information needed or useful in the negotiation.

The mediator may call a joint meeting to assist the parties in an agreement for the exchange of information. All documents must be returned to the originating party at the conclusion of the mediation process.

12.At any time during the mediation process, the mediator may request either party to provide additional information for clarification purposes and to assist in the resolution of the dispute.

13.The parties are expected to initiate and present proposals for resolution of disputed issues and to provide justification for their position. The mediator may also present recommendations for the resolution of disputed issues at any point in the mediation process.

History

• Law Implemented: NDCC 28-32-05.1, 28-32-08, 49-01-07

N.D. Admin. Code 69-02-11-05 Termination of mediation

Mediation must terminate upon execution of a mediated agreement by the parties, filing of a notice with the commission by a party that mediation is terminated, failure of a party or parties to negotiate in good faith, or notification to the commission by the mediator that further mediation is futile.

1.Any party that terminates the mediation proceeding shall provide a detailed explanation of its decision in a written declaration to the commission. If the mediator terminated the mediation procedure, the mediator must provide a detailed explanation why the mediation failed.

2.At any time subsequent to the termination of mediation, the parties and the mediator, by agreement, may resume mediation to attempt to resolve their differences. If appointment of a new mediator is necessary, the mediation must be initiated in the same manner as a new mediation.

N.D. Admin. Code 69-02-11-06 Applicable laws and rules

The mediation procedure must be governed by the provisions of the Telecommunications Act of 1996, Public Law No. 104-104, 101 Stat. 56 (1996); the North Dakota Administrative Practices Act, North Dakota Century Code chapter 28-32; the commission's rules of practice and procedure; North Dakota Administrative Code article 69-02; and the commission issued guidelines and procedural orders.

Article 69-04 Transportation - Loss, Claims, Damages, and Rates

Chapter 69-04-01 Motor Carrier Tariffs [Repealed]

N.D. Admin. Code 69-04-01 Motor Carrier Tariffs [Repealed]

ARTICLE 69-04

TRANSPORTATION - LOSS, CLAIMS, DAMAGES, AND RATES

Chapter 69-04-01Motor Carrier Tariffs [Repealed] 69-04-02Loss and Damage Claims - Common Carriers [Repealed] 60-04-03Rail Carrier Rates

CHAPTER 69-04-01

MOTOR CARRIER TARIFFS [Repealed effective May 1, 1996]

Chapter 69-04-02 Loss and Damage Claims - Common Carriers [Repealed]

N.D. Admin. Code 69-04-02 Loss and Damage Claims - Common Carriers [Repealed]

CHAPTER 69-04-02

LOSS AND DAMAGE CLAIMS - COMMON CARRIERS [Repealed effective May 1, 1996]

Chapter 69-04-03 Rail Carrier Rates

N.D. Admin. Code 69-04-03-01 Intrastate regulatory standards

Intrastate rail rates will be regulated in accordance with federal standards in effect as of September 1, 1995, prescribed in the Interstate Commerce Act [Title 49, United States Code], corresponding Interstate Commerce Commission rules [Title 49, Code of Federal Regulations], the interstate commerce commission decision In the Matter of Ex Parte 388 A, State Intrastate Rail Rates

Authority, Public Law 96-448, Recertification Process, 5 I.C.C. 2d 680 (1989).

History

• History: Effective September 1, 1982; amended effective February 1,1991; January 1, 1994; May 1, 1996.
• General Authority: NDCC 49-10.1-03
• Law Implemented: NDCC 49-10.1-01

N.D. Admin. Code 69-04-03-02 Burden of proof

N.D. Admin. Code 69-04-03-03 Minimum rates

N.D. Admin. Code 69-04-03-04 Rate prescription

N.D. Admin. Code 69-04-03-05 Investigation and suspension

N.D. Admin. Code 69-04-03-06 Rate flexibility zone

N.D. Admin. Code 69-04-03-07 Market dominance

N.D. Admin. Code 69-04-03-08 Base rates

N.D. Admin. Code 69-04-03-09 Contract rates

N.D. Admin. Code 69-04-03-10 Common carrier obligation

N.D. Admin. Code 69-04-03-11 Discrimination

N.D. Admin. Code 69-04-03-12 Separate rates for distinct services

N.D. Admin. Code 69-04-03-13 Business entertainment expenses

N.D. Admin. Code 69-04-03-14 Tariff required

N.D. Admin. Code 69-04-03-15 Exemption of rail transportation

N.D. Admin. Code 69-04-03-16 Rates and liability based on value

N.D. Admin. Code 69-04-03-17 Rates for recyclable materials

N.D. Admin. Code 69-04-03-18 Through routes and joint rates

N.D. Admin. Code 69-04-03-19 Through routes and joint rates prescribed by the commission

N.D. Admin. Code 69-04-03-20 Joint rate surcharges and cancellations

N.D. Admin. Code 69-04-03-21 General and inflation increases and fuel surcharges

N.D. Admin. Code 69-04-03-22 General tariff requirements. 69-04-03-22.1. Contract tariff requirements

N.D. Admin. Code 69-04-03-23 National transportation policy

N.D. Admin. Code 69-04-03-24 Rail rate proceedings

N.D. Admin. Code 69-04-03-25 Limitations in rulemaking proceedings relating to rates of rail carriers

N.D. Admin. Code 69-04-03-26 Commission action in rail carrier rate proceedings

N.D. Admin. Code 69-04-03-27 Procedures for requesting surcharge costs and revenues from rail carriers applying a commodity oriented surcharge or canceling the application of a joint rate

Article 69-05.2 Surface Coal Mining and Reclamation Operations

Chapter 69-05.2-01 General Provisions

N.D. Admin. Code 69-05.2-01 General Provisions

ARTICLE 69-05.2

SURFACE COAL MINING AND RECLAMATION OPERATIONS

Chapter 69-05.2-01General Provisions 69-05.2-02Restrictions on Financial Interests of Employees 69-05.2-03Exemption for Coal Extraction Incident to Government-Financed Highway or Other Construction 69-05.2-04Areas Unsuitable for Mining 69-05.2-05Permit Applications - General Requirements 69-05.2-06Permit Applications - Requirements for Legal, Financial, Compliance, and Related Information 69-05.2-07Permit Applications - Extended Mining Plan - Requirements for Information on Environmental Resources 69-05.2-08Permit Applications - Permit Area - Requirements for Information on Environmental Resources 69-05.2-09Permit Applications - Permit Area - Requirements for Operation and Reclamation Plans 69-05.2-10Permit Applications - Review, Public Participation, and Approval or Disapproval 69-05.2-11Permit Reviews, Revisions, and Renewals - Transfer, Sale, or Assignment of Rights Granted Under Permits 69-05.2-12Performance Bonds - Liability Insurance 69-05.2-13Performance Standards - General Requirements 69-05.2-14Performance Standards - Casing and Sealing of Drilled Holes 69-05.2-15Performance Standards - Suitable Plant Growth Material 69-05.2-16Performance Standards - Hydrologic Balance - General Requirements 69-05.2-17Performance Standards - Use of Explosives 69-05.2-18Performance Standards - Disposal of Excess Spoil 69-05.2-19Performance Standards - Waste Materials 69-05.2-20Performance Standards - Dams and Embankments Constructed of or Impounding Coal Processing Waste 69-05.2-21Performance Standards - Backfilling and Grading 69-05.2-22Performance Standards - Revegetation 69-05.2-23Performance Standards - Postmining Land Use 69-05.2-24Performance Standards - Roads - Other Transportation Facilities - Support Facilities 69-05.2-25Performance Standards - Operations in Alluvial Valley Floors 69-05.2-26Performance Standards - Prime Farmland 69-05.2-27Requirements for Research Plots and Permits for Experimental Surface Coal Mining and Reclamation Operations 69-05.2-28Inspection and Enforcement 69-05.2-29Small Operator Assistance 69-05.2-30Off-Permit Use of Other Minerals 69-05.2-31Training, Examination, and Certification of Blasters 69-05.2-32Improvidently Issued Permits

CHAPTER 69-05.2-01

GENERAL PROVISIONS

Section 69-05.2-01-01Applicability of Article 69-05.2-01-02Definitions 69-05.2-01-03Promulgation of Rules - Notice - Hearing 69-05.2-01-04Notice of Citizen Suits 69-05.2-01-05Computation of Time 69-05.2-01-06Intervention 69-05.2-01-07Petitions for Award of Costs and Expenses - Answer - Awards - Judicial Review 69-05.2-01-01. Applicability of article.

This article applies to any person conducting surface coal mining operations; and to all surface coal mining operations conducted after August 1, 1980, on lands from which the coal had not yet been removed and to any other lands subject to North Dakota Century Code chapter 38-14.1 or this article.

1.This article does not apply to:

a.The extraction of coal by a landowner for the landowner's own noncommercial use from land owned or leased by the landowner.

b.Coal removal for reclamation operations under North Dakota Century Code chapter 38-14.2.

c.Coal extraction as an incidental part of federal, state, or local government-financed highway or other construction, except as provided by chapter 69-05.2-03.

d.Coal extraction of two hundred fifty tons [226.80 metric tons] or less under a coal exploration permit issued by the office of the state geologist.

2.The commission may on its own initiative and will, within a reasonable time of a request from any person who intends to conduct surface coal mining operations, make a written determination whether the operation is exempt under this section. The commission will give reasonable notice of the request to interested persons. Prior to the time a determination is made, any person may submit, and the commission will consider, any relevant written information. A person requesting that an operation be declared exempt has the burden of establishing the exemption. If an exemption is reversed through subsequent administrative or judicial action, any person who, in good faith, has made a complete and accurate request for an exemption and relied upon the determination, may not be cited for violations which occurred prior to the date of the reversal.

3.The commission may terminate its jurisdiction over the reclaimed site of a completed surface coal mining and reclamation operation, or increment of an operation, when it has released fully the related performance bond under the procedures of North Dakota Century Code

section 38-14.1-17 and chapter 69-05.2-12.

4.The commission will reassert jurisdiction over a site if the bond release referred to in subsection 3 was based upon fraud, collusion, or misrepresentation of a material fact.

History: Effective August 1, 1980; amended effective May 1, 1990; January 1, 1993.

Law Implemented: NDCC 38-14.1-02, 38-14.1-10, 38-14.1-37 69-05.2-01-02. Definitions.

The definitions in North Dakota Century Code section 38-14.1-02 apply to this article and the following terms have the specified meaning except where otherwise indicated:

1."Adjacent area" means land located outside the affected area or permit area, depending on the context in which "adjacent area" is used, where air, surface or ground water, fish, wildlife, vegetation, alluvial valley floors, or other resources may be adversely impacted by surface coal mining and reclamation operations.

2."Affected area" means any land or water upon or in which surface coal mining and reclamation operations are conducted or located.

3."Agricultural activities" means, with respect to alluvial valley floors, the use of any tract of land for the production of animal or vegetable life, where the use is enhanced or facilitated by subirrigation or flood irrigation associated with alluvial valley floors. These uses include the pasturing, grazing, or watering of livestock, and the cropping, cultivation, or harvesting of plants whose production is aided by the availability of water from subirrigation or flood irrigation. Those uses do not include agricultural practices which do not benefit from the availability of water from subirrigation or flood irrigation.

4."Agricultural use" means the use of any tract of land for the production of animal or vegetable life. The uses include the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

5."Aquifer" means a zone, stratum, or group of strata that can store and transmit water in sufficient quantities for a specific use.

6."Best technology currently available" means equipment or techniques which will:

a.Prevent, to the extent possible, additional contributions of suspended solids to streamflow or runoff outside the permit area, but in no event result in contributions of suspended solids in excess of requirements set by applicable state law.

b.Minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values and achieve enhancement of those resources where practicable.

c.The term includes equipment or techniques which are currently available anywhere as determined by the commission, even if they are not in routine use.

d.The term includes construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities, and sedimentation pond design.

e.The commission has the discretion to determine the best technology currently available on a case-by-case basis.

7."Blaster" means a person directly responsible for the use of explosives in surface coal mining operations who is certified under chapter 69-05.2-31.

8."Cemetery" means any area of land where human bodies are interred.

9."Coal mining operation" means, for purposes of restrictions on financial interests of employees, the business of developing, producing, preparing, or loading bituminous coal, subbituminous coal, anthracite, or lignite, or of reclaiming the areas upon which such activities occur.

10."Coal preparation" means chemical or physical processing and the cleaning, concentrating, or other processing or preparation of coal.

11."Coal preparation plant" means a facility where coal is subjected to chemical or physical processing or the cleaning, concentrating, or other processing or preparation. It includes facilities associated with coal preparation activities, including, but not limited to, the following: loading facilities, storage and stockpile facilities, sheds, shops and other buildings, water treatment and water storage facilities, settling basins and impoundments, and coal processing and other waste disposal areas.

12."Coal processing waste" means earth materials which are wasted and separated from product coal during cleaning, concentrating, or other processing or preparation of coal.

13."Collateral bond" means an indemnity agreement in a sum certain payable to the state of North Dakota executed by the permittee and which is supported by the deposit with the commission of cash, negotiable bonds of the United States or of North Dakota, or negotiable certificates of deposit of any bank authorized to do business in North Dakota, or an irrevocable standby letter of credit issued by a federally insured or equivalently protected bank authorized to do business in the United States, payable only to the commission upon presentation.

14."Combustible material" means organic material that is capable of burning, either by fire or through a chemical process (oxidation), accompanied by the evolution of heat and a significant temperature rise.

15."Community or institutional building" means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings, or functions of local civic organizations, or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health, or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation, or sewage treatment.

16."Compaction" means increasing the density of a material by reducing the voids between the particles and is generally accomplished by controlled placement and mechanical effort such as from repeated application of wheel, track, or roller loads from heavy equipment.

17."Complete inspection" means an onsite review of a permittee's or operator's compliance with all permit conditions and requirements imposed under North Dakota Century Code

chapter 38-14.1 and this article, within the entire area disturbed or affected by surface coal mining and reclamation operations and includes the collection of evidence with respect to every violation of those conditions or requirements.

18."Complete permit application" means an application for a surface coal mining and reclamation operations permit, which contains all information required by North Dakota Century Code

chapter 38-14.1 and this article, to allow the commission to initiate the notice requirements of North Dakota Century Code section 38-14.1-18 and a technical review for the purpose of complying with the permit approval or denial standards of North Dakota Century Code section 38-14.1-21 and of this article.

19."Cooperative soil survey" means a field or other investigation that locates, describes, classifies, and interprets for use the soils in a given area. The survey must meet the national cooperative soil survey standards and is the type of survey that is made for operational conservation planning by the United States department of agriculture natural resource conservation service in cooperation with agencies of the state and, in some cases, other federal agencies. If the survey is not available and a permit applicant is required to have a survey made, the map scale must be 1:20,000.

20."Cropland" means land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops. Land used for facilities in support of cropland farming operations which is adjacent to or an integral part of these operations is also included.

21."Cumulative impact area" means the surface and ground water systems which may be affected until final bond release by:

a.The proposed operation and all existing surface coal mining and reclamation operations;

b.Any operations for which a permit application has been submitted to the regulatory

authority; and

c.All operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available.

22."Developed water resources" means, for land use purposes, land used for storing water for beneficial uses such as stockponds, irrigation, wildlife habitat, fire protection, flood control, and water supply.

23."Direct financial interest" means ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares, or other holdings, and also means any other arrangement where the employee may benefit from the employee's holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, real property, and other financial relationships.

24."Disturbed area" means those areas that have been affected by surface coal mining and reclamation operations. Areas are classified as "disturbed" until reclamation is complete and the performance bond or other assurance of performance required by North Dakota Century Code chapter 38-14.1 and this article is released.

25."Diversion" means a channel, embankment, or other manmade structure constructed to divert water from one area to another.

26."Embankment" means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes.

27."Emergency spillway" means the spillway designed to convey excess water through, over, or around a dam.

28."Employee" means, for purposes of restrictions on financial interests of employees: any person employed by the commission as a state employee who performs any function or duty under North Dakota Century Code chapter 38-14.1; advisory board, commission members, or consultants who perform any decisionmaking functions for the commission under authority of state law or regulations; and any other state employee who performs any decisionmaking function or duty under a cooperative agreement with the commission. This definition does not include: the public service commissioners, who file annually with the director of the office of surface mining reclamation and enforcement, United States department of the interior; and members of advisory boards or commissions established in accordance with state laws or regulations to represent multiple interests, such as the North Dakota reclamation advisory committee.

29."Ephemeral stream" means a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and which has a channel bottom that is always above the local water table.

30."Essential hydrologic functions" means with respect to alluvial valley floors, the role of the valley floor in collecting, storing, regulating, and making the natural flow of surface or ground water, usefully available for agricultural activities, by reason of its position in the landscape and the characteristics of its underlying material. A combination of those functions provides a water supply during extended periods of low precipitation.

a.The role of the valley floor in collecting water includes accumulating runoff and discharge from aquifers in sufficient amounts to make the water available at the alluvial valley floor greater than the amount available from direct precipitation.

b.The role of the alluvial valley floor in storing water involves limiting the rate of discharge of surface water, holding moisture in soils, and holding ground water in porous materials.

c.The role of the alluvial valley floor in regulating the natural flow of surface water results from the characteristic configuration of the channel floodplain and adjacent low terraces.

d.The role of the alluvial valley floor in regulating the natural flow of ground water results from the properties of the aquifers which control inflow and outflow.

e.The role of the alluvial valley floor in making water usefully available for agricultural activities results from the existence of floodplains and terraces where surface and ground water can be provided in sufficient quantities to support the growth of agriculturally useful plants, from the presence of earth materials suitable for the growth of agriculturally useful plants, from the temporal and physical distribution of water making it accessible to plants throughout the critical phases of the growth cycle either by flood irrigation or by subirrigation, from the natural control of alluvial valley floors in limiting destructive extremes of stream discharge, and from the erosional stability of earth materials suitable for growth of agriculturally useful plants.

31."Existing structure" means a structure or facility used in connection with or to facilitate surface coal mining and reclamation operations for which construction began prior to August 1, 1980.

32."Extraction of coal as an incidental part" means the extraction of coal which is necessary to enable government-financed construction to be accomplished. Only that coal extracted from within the right of way, in the case of a road, railroad, utility line or other such construction, or within the boundaries of the area directly affected by other types of government-financed construction, may be considered incidental to that construction. Extraction of coal outside the right of way or boundary of the area directly affected by the construction shall be subject to the requirements of North Dakota Century Code chapter 38-14.1 and this article.

33."Fish and wildlife habitat" means lands or waters used partially or wholly for the maintenance, production, protection, or management of species of fish or wildlife.

34."Flood irrigation" means, with respect to alluvial valley floors, supplying water to plants by natural overflow, or the diversion of flows in which the surface of the soil is largely covered by a sheet of water.

35."Fragile lands" means geographic areas containing natural, ecologic, scientific, paleontologic, or aesthetic resources that could be damaged or destroyed by surface coal mining operations.

Examples of fragile lands include valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, state and national natural landmark sites, areas where mining may cause flooding, environmental corridors containing a concentration of ecologic and aesthetic features, areas of recreational value due to high environmental quality, and buffer zones adjacent to the boundaries of areas where surface coal mining operations are prohibited under North Dakota Century Code

section 38-14.1-07.

36."Fugitive dust" means that particulate matter not emitted from a duct or stack which becomes airborne due to the forces of wind or surface coal mining and reclamation operations or both.

During surface coal mining and reclamation operations it may include emissions from haul roads; wind erosion of exposed surfaces, storage piles, and spoil piles; reclamation operations; and other activities in which material is either removed, stored, transported, or redistributed.

37."Government financing agency" means a federal, state, county, municipal, or local unit of government, or a department, bureau, agency, or office of the unit which, directly or through another unit of government, finances construction.

38."Government-financed construction" means construction funded fifty percent or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds, but shall not mean government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or other equivalent, or in-kind payments.

39."Ground cover" means the area of ground covered by vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of measurement.

40."Ground water" means subsurface water that fills available openings in rock or soil materials to the extent that they are considered water-saturated.

41."Half-shrub" means a perennial plant with a woody base whose annually produced stems die back each year.

42."Historic lands" means areas containing historic, cultural, or scientific resources. Examples include archaeological sites, national historic landmarks, places listed on or eligible for listing on the state historic sites registry or the national register of historic places, places having religious or cultural significance to native Americans or religious groups or places for which historic designation is pending.

43."Historically used for cropland" means:

a.Lands that have been used for cropland for any five years or more out of the ten years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing through resale, lease, or option the conduct of surface coal mining and reclamation operations;

b.Lands that the commission determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific five-years-in-ten criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or

c.Lands that would likely have been used as cropland for any five out of the last ten years, immediately preceding such acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.

44."Hydrologic balance" means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the quantity and quality relationships among precipitation, runoff, evaporation, and changes in ground and surface water storage.

45."Hydrologic regime" means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transpiration.

46."Impounding structure" means a dam, embankment, or other structure used to impound water, slurry, or other liquid or semiliquid materials.

47."Impoundment" means a closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment, or waste.

48."Indirect financial interest" means the same financial relationships as for direct ownership, but where the employee reaps the benefits of such interests, including interests held by the employee's spouse, minor child, and other relatives, including in-laws, residing in the employee's home. The employee will not be deemed to have an indirect financial interest if there is no relationship between the employee's functions or duties and the coal mining operation in which the spouse, minor children, or other resident relatives hold a financial interest.

49."Industrial and commercial" means, for land use purposes, land used for:

a.Extraction or transformation of materials for fabrication of products, wholesaling of products, or for long-term storage of products. This includes all heavy and light manufacturing facilities such as chemical manufacturing, petroleum refining, and fabricated metal products manufacture. Land used for facilities in support of these operations which is adjacent to or an integral part of that operation is also included.

Support facilities include, but are not limited to, all rail, road, and other transportation facilities.

b.Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. Land used for facilities in support of commercial operations which is adjacent to or an integral part of these operations is also included.

Support facilities include, but are not limited to, parking, storage, or shipping facilities.

50."Intermittent stream" means a stream or part of a stream that flows continuously for at least one month of the calendar year as a result of ground water discharge or surface runoff.

51."Irreparable damage to the environment" means any damage to the environment that cannot be corrected by action of the permit applicant or the operator.

52."Knowingly" means, with respect to individual civil penalties, that an individual knew or had reason to know in authorizing, ordering, or carrying out an act or omission on the part of a corporate permittee that the act or omission constituted a violation, failure, or refusal.

53."Land use" means specific uses or management-related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur.

54."Leachate" means a liquid that has percolated through soil, rock, or waste and has extracted dissolved or suspended materials.

55."Materially damage the quantity or quality of water" means, with respect to alluvial valley floors, changes in the quality or quantity of the water supply to any portion of an alluvial valley floor where such changes are caused by surface coal mining and reclamation operations and result in changes that significantly and adversely affect the composition, diversity, or productivity of vegetation dependent on subirrigation, or which result in changes that would limit the adequacy of the water for flood irrigation of the irrigable land acreage existing prior to mining.

56."Monitoring" means the collection of environmental data by either continuous or periodic sampling methods.

57."Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing microclimatic conditions suitable for the germination and growth of plants.

58."Native grassland" means land on which the natural potential plant cover is principally composed of native grasses, grasslike plants, forbs, and shrubs valuable for forage and is used for grazing, browsing, or occasional hay production. Land used for facilities in support of ranching operations which is adjacent to or an integral part of these operations is also included.

59."Natural hazard lands" means geographic areas in which natural conditions exist which pose or, as a result of surface coal mining operations, may pose a threat to the health, safety, or welfare of people, property, or the environment, including areas subject to landslides, cave-ins, large or encroaching sand dunes, severe wind or soil erosion, frequent flooding, avalanches, and areas of unstable geology.

60."Noxious plants" means species as defined in North Dakota Century Code section 63-01.1-02 that have been included on the official state list of noxious weeds.

61."Occupied dwelling" means any building that is currently being used on a regular or temporary

basis for human habitation.

62."Operation plan" means a plan submitted by a permit applicant which sets forth a detailed description of the surface coal mining operations proposed to be conducted during the term of the permit within the proposed permit area.

63."Outslope" means the face of the spoil or embankment sloping downward from the highest elevation to the toe.

64."Owned or controlled" and "owns or controls" mean any one or a combination of the relationships specified in subdivisions a and b:

a.Being a permittee of a surface coal mining operation; based on instrument of ownership or voting securities, owning of record in excess of fifty percent of an entity; or having any other relationship which gives one person authority, directly or indirectly, to determine the manner in which an applicant, operator, or other entity conducts surface coal mining operations.

b.The following relationships are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not in fact have the authority, directly or indirectly, to determine the manner in which the relevant surface coal mining operation is conducted:

(1)Being an officer or director of an entity;

(2)Being the operator of a surface coal mining operation;

(3)Having the ability to commit the financial or real property assets or working resources of an entity;

(4)Being a general partner in a partnership;

(5)Based on the instruments of ownership or the voting securities of a corporate entity, owning of record ten through fifty percent of the entity; or (6)Owning or controlling coal to be mined by another person under a lease, sublease, or other contract and having the right to receive the coal after mining or having

authority to determine the manner in which that person or another person conducts a surface coal mining operation.

65."Partial inspection" means an onsite review of a permittee's or operator's compliance with some of the permit conditions and requirements imposed under North Dakota Century Code

chapter 38-14.1 and this article and includes the collection of evidence of any violation of those conditions or requirements.

66."Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface runoff.

67."Performing any function or duty" means those decisions or actions which, if performed or not performed by an employee, affect surface coal mining and reclamation operations under North Dakota Century Code chapter 38-14.1.

68."Permanent diversion" means a diversion remaining after surface coal mining and reclamation operations which has been approved for retention by the commission and other appropriate state agencies.

69."Permanent impoundment" means an impoundment requested for retention as part of the postmining land use by the surface owner and approved by the commission and, if required, by other state and federal agencies.

70."Person having an interest which is or may be adversely affected or person with a valid legal interest" includes:

a.Any person who uses any resource of economic, recreational, aesthetic, or environmental value that may be adversely affected by surface coal mining and reclamation operations or any related action of the commission.

b.Any person whose property is or may be adversely affected by surface coal mining and reclamation operations or any related action of the commission.

c.Any federal, state, or local governmental agency.

71."Precipitation event" means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. "Precipitation event" also includes that quantity of water emanating from snow cover as snowmelt in a limited period of time.

72."Prime farmland" means those lands defined by the secretary of agriculture in 7 CFR 657 and historically used for cropland. Prime farmlands are identified based on cooperative soil surveys and soil mapping units designated as prime farmland by the natural resource conservation service.

73."Principal shareholder" means any person who is the record or beneficial owner of ten percent or more of any class of voting stock.

74."Principal spillway" means an ungated pipe conduit with minimum diameter of twelve inches [30.48 centimeters] constructed for the purpose of conducting water through the embankment back to streambed elevation without erosion.

75."Probable cumulative impacts" means the expected total qualitative and quantitative, direct and indirect effects of mining and reclamation activities on the hydrologic regime.

76."Probable hydrologic consequence" means the projected result of proposed surface coal mining and reclamation operations which may reasonably be expected to change the quantity or quality of the surface and ground water; the surface or ground water flow, timing, and pattern; the stream channel conditions; and the aquatic habitat on the permit area and adjacent areas.

77."Productivity" means the vegetative yield produced by a unit area for a unit of time.

78."Prohibited financial interest" means any direct or indirect financial interest in any coal mining operation.

79."Public building" means any structure that is owned by a public agency or used principally for public business, meetings, or other group gatherings.

80."Public office" means a facility under the direction and control of a governmental entity which is open to the public on a regular basis during reasonable business hours.

81."Public park" means an area dedicated or designated by any federal, state, or local agency for public recreational use, whether or not such use is limited to certain times or days, including any land leased, reserved, or held open to the public because of that use.

82."Public road" means a public way for purposes of vehicular travel, including the entire area within the right of way, all public ways acquired by prescription as provided by statute, and all land located within two rods [10.06 meters] on each side of all section lines. This definition does not include those public ways or section lines which have been vacated as permitted by statute or abandoned as provided by statute.

83."Qualified laboratory" means a designated public agency, private consulting firm, institution, or analytical laboratory which can provide the required determination or statement under the small operator assistance program.

84."Recharge capacity" means the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation.

85."Recreation" means, for land use purposes, land used for public or private leisure-time use, including developed recreation facilities such as parks, camps, and amusement areas, as well as areas for less intensive uses such as hiking, canoeing, and other undeveloped recreational uses.

86."Recurrence interval" means the interval of time in which a precipitation event is expected to occur once, on the average. For example, the ten-year, twenty-four-hour precipitation event would be that twenty-four-hour precipitation event expected to occur on the average once in ten years. Magnitude of such events are as defined by the national weather service technical paper no. 40, Rainfall Frequency Atlas of the United States, May 1961, and subsequent amendments or equivalent regional or rainfall probability information developed therefrom.

87."Reference area" means a land unit maintained under appropriate management for the

purpose of measuring vegetation ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the commission.

Reference areas must be representative of geology, soil, slope, and vegetation in the permit area.

88."Refuse pile" means a surface deposit of coal mine waste that does not impound water, slurry, or other liquid or semiliquid material.

89."Renewable resource lands" means aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands.

90."Replacement of water supply" means, with respect to protected water supplies contaminated, diminished, or interrupted by surface mining activities, providing a water supply on both a temporary and permanent basis equivalent to premining quantity and quality. Replacement includes providing an equivalent water delivery system and payment of operation and maintenance costs in excess of customary and reasonable delivery costs for the premining water supplies.

a.Upon agreement by the permittee and the water supply owner, the obligation to pay such excess operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the permittee and the water supply owner.

b.If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If this approach is selected:

(1)Written concurrence must be obtained from the water supply owner; and (2)When final bond release is requested for the tract of land that contained the premine water supply, the newspaper notice and the letters sent to property owners and governmental agencies pursuant to subsection 1 of North Dakota Century Code

section 38-14.1-17 must identify the approximate location of the premine water supply and clearly state that the permittee does not intend to replace the water delivery system.

Based on comments that are received on the final bond release application, the commission will determine whether or not a replacement water delivery system is needed to protect the public interest. If the commission determines that a replacement water delivery system is needed, the permittee must install the water delivery system before final bond release will be granted.

91."Residential" means, for land use purposes, single-family and multiple-family housing, mobile home parks, and other residential lodgings. Land used for facilities in support of residential operations which is adjacent to or an integral part of these operations is also included.

Support facilities include, but are not limited to, vehicle parking and open space that directly relate to the residential use.

92."Return on investment" means the relation of net profit for the last yearly period to ending net worth.

93."Road" means a surface right of way used, constructed, reconstructed, improved, or maintained for travel by land vehicles for use in surface coal mining and reclamation operations. The term includes access and haul roads used in surface coal mining and reclamation operations, including use by coal hauling vehicles to and from transfer, processing, or storage areas. A road consists of the entire area within the right of way, including the roadbed, shoulders, parking and side areas, approaches, structures, ditches, and surface. The term does not include ramps and routes of travel within the immediate mining area or within spoil or coal mine waste disposal areas.

94."Safety factor" means the ratio of the available shear strength to the developed shear stress on a potential surface of sliding, or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices.

95."Sedimentation pond" means a primary sediment control structure designed, constructed, and maintained in accordance with this article and including, but not limited to, a barrier, dam, or excavated depression which slows down water runoff to allow sediment to settle out. A sedimentation pond shall not include secondary sedimentation control structures, such as straw dikes, riprap, check dams, mulches, dugouts, and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment, to the extent that such secondary sedimentation structures drain to a sedimentation pond.

96."Shelterbelt" means a strip or belt of trees or shrubs planted by man in or adjacent to a field or next to a farmstead, feedlot, or road. Shelterbelt is synonymous with windbreak.

97."Significant, imminent environmental harm to land, air, or water resources" is determined as follows:

a.An environmental harm is any adverse impact on land, air, or water resources, including, but not limited to, plant and animal life.

b.An environmental harm is imminent if a condition, practice, or violation exists which is causing such harm or may reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under North Dakota Century Code section 38-14.1-28.

c.An environmental harm is significant if that harm is appreciable and not immediately reparable.

98."Significant recreational, economic, or other values incompatible with surface coal mining operations" means those significant values which could be damaged by, and are not capable of existing together with, surface coal mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on offsite areas which could be affected by mining. Those values to be evaluated for their importance include:

a.Recreation, including hiking, boating, camping, skiing, or other related outdoor activities.

b.Agriculture, aquaculture, or production of other natural, processed, or manufactured products which enter commerce.

c.Scenic, historic, archaeologic, aesthetic, fish, wildlife, plants, or cultural interests.

99."Slope" means average inclination of a surface, measured from the horizontal. Normally expressed as a unit of vertical distance to a given number of units of horizontal distance, e.g., 1v to 5h = 20 percent = 11.3 degrees.

100."Soil horizons" means contrasting layers of soil lying one below the other, parallel, or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The three major soil horizons are:

a.A horizon. The uppermost layer in the soil profile, often called the surface soil. It is the

part of the soil in which organic matter is most abundant and where leaching of soluble or suspended particles is the greatest.

b.B horizon. The layer immediately beneath the A horizon. This middle layer commonly contains more clay, iron, or aluminum than the A or C horizon.

c.C horizon. The deepest layer of the soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

101."Spoil" means overburden that has been disturbed during surface coal mining operations.

102."Stabilize" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties such as by providing a protective surface coating.

103."Subirrigation" means, with respect to alluvial valley floors, the supplying of water to plants from a semisaturated or saturated subsurface zone where water is available for use by vegetation. Subirrigation may be identified by:

a.Diurnal fluctuation of the water table, due to the differences in nighttime and daytime evapotranspiration rates;

b.Increasing soil moisture from a portion of the root zone down to the saturated zone, due to capillary action;

c.Mottling of the soils in the root zones;

d.Existence of an important part of the root zone within the capillary fringe or water table of an alluvial aquifer; or

e.An increase in streamflow or a rise in ground water levels, shortly after the first killing frost on the valley floor.

104."Substantial legal and financial commitments in a surface coal mining operation" means significant investments that have been made on the basis of a long-term coal contract in power plants, railroads, coal handling, preparation, extraction or storage facilities, and other capital-intensive activities.

105."Successor in interest" means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.

106."Surety bond" means an indemnity agreement in a sum certain payable to the state of North Dakota executed by the permittee or permit applicant which is supported by the performance guarantee of a corporate surety licensed to do business in the state of North Dakota.

107."Surface coal mining operations which exist on the date of enactment" means all surface coal mining operations which were being conducted on July 1, 1979.

108."Surface mining activities" means those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam, before recovering the coal, or by recovery of coal from a deposit that is not in its original geologic location.

109."Suspended solids" means organic or inorganic materials carried or held in suspension in water that will remain on a forty-five hundredths micron filter.

110."Tame pastureland" means land used for the long-term production of predominantly adapted, domesticated species of forage plants to be grazed by livestock or occasionally cut and cured for livestock feed. Land used for facilities in support of pastureland which is adjacent to or an integral part of these operations is also included.

111."Temporary diversion" means a diversion of a stream or overland flow which is used during surface coal mining and reclamation operations and not approved by the commission to remain after reclamation as part of the approved postmining land use.

112."Temporary impoundment" means an impoundment used during surface coal mining and reclamation operations, but not approved by the commission to remain as part of the postmining land use.

113."Ton" means two thousand pounds avoirdupois [0.90718 metric ton].

114."Toxic mine drainage" means water that is discharged from active or abandoned mines or other areas affected by coal exploration or surface coal mining and reclamation operations, which contains a substance that through chemical action or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it.

115."Toxic-forming materials" means earth materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

116."Transfer, assignment, or sale of rights" means a change in ownership or other effective control over the right to conduct surface coal mining operations under a permit issued by the commission.

117."Unconsolidated streamlaid deposits holding streams" means, with respect to alluvial valley floors, all floodplains and terraces located in the lower portions of topographic valleys which contain perennial or other streams with channels that are greater than three feet [0.91 meter] in bankfull width and greater than six inches [15.24 centimeters] in bankfull depth.

118."Undeveloped rangeland" means, for purposes of alluvial valley floors, lands generally used for livestock grazing where such use is not specifically controlled and managed.

119."Upland areas" means, with respect to alluvial valley floors, those geomorphic features located outside the floodplain and terrace complex, such as isolated higher terraces, alluvial fans, pediment surfaces, landslide deposits, and surfaces covered with residuum, mud flows or debris flows, as well as highland areas underlain by bedrock and covered by residual weathered material or debris deposited by sheetwash, rillwash, or windblown material.

120."Valid existing rights" means a set of circumstances under which a person, subject to commission approval, may conduct surface coal mining operations on lands where North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 would otherwise prohibit such operations. Possession of valid existing rights confers an exception from these prohibitions. A person seeking to exercise valid existing rights must comply with all other pertinent requirements of North Dakota Century Code chapter 38-14.1 and this article.

a.Property rights demonstration. Except as provided in subdivision c, a person claiming valid existing rights must demonstrate that a legally binding conveyance, lease, deed, contract, or other document vests that person, or a predecessor in interest, with the right to conduct the type of surface coal mining operations intended. This right must exist at the time that the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1. Applicable state statutory or case law will govern interpretation of documents relied upon to establish property rights, unless federal law provides otherwise. If no applicable state law exists, custom and generally accepted usage at the time and place that the documents came into existence will govern their interpretation.

b.Except as provided in subdivision c, a person claiming valid existing rights must also demonstrate compliance with one of the following standards:

(1)All permits or good-faith standard. All permits and other authorizations required to conduct surface coal mining operations had been obtained or a good-faith effort to obtain all necessary permits and authorizations had been made, before the land came under the protection of North Dakota Century Code section 38-14.1-07 and

section 69-05.2-04-01.1. At a minimum, an application must have been submitted for the permit required under this article.

(2)Needed for and adjacent standard. The land is needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations required to conduct surface coal mining operations had been obtained or a good-faith attempt to obtain all permits and authorizations had been made, before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1. To meet this standard, a person must demonstrate that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1. Except for operations in existence before August 3, 1977, or for which a good-faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 when the commission approved the permit for the original operation or when the good-faith effort to obtain all necessary permits for the original operation was made.

In evaluating whether a person meets this standard, the commission may consider factors such as:

(a)The extent to which coal supply contracts or other legal and business commitments that predate the time that the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 depend upon use of that land for surface coal mining operations.

(b)The extent to which plans used to obtain financing for the operation before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 rely upon use of that land for surface coal mining operations.

(c)The extent to which investments in the operation before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 rely upon use of that land for surface coal mining operations.

(d)Whether the land lies within the area identified on the life-of-mine map submitted under chapter 69-05.2-07 before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.

c.Roads. A person who claims valid existing rights to use or construct a road across the surface of lands protected by North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 must demonstrate that one or more of the following circumstances exist if the road is included within the definition of "surface coal mining operations" in subsection 33 of North Dakota Century Code section 38-14.1-02:

(1)The road existed when the land upon which it is located came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 and the person has a legal right to use the road for surface coal mining operations.

(2)A properly recorded right of way or easement for a road in that location existed when the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1, and, under the document creating the right of way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations.

(3)A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.

(4)Valid existing rights exist under subdivisions a and b.

121."Viable economic unit" means, with respect to prime farmland, any tract of land identified as prime farmland by the state conservationist of the natural resource conservation service that has been historically used for cropland.

122."Violation, failure, or refusal" means, with respect to individual civil penalties:

a.A violation of a condition of a permit issued by the commission; or

b.A failure or refusal to comply with any order issued under North Dakota Century Code

section 38-14.1-28, or any order incorporated in a final decision issued by the commission under North Dakota Century Code chapter 38-14.1, except an order incorporated in a decision issued under subsection 1 of North Dakota Century Code

section 38-14.1-29.

123."Violation notice" means any written notification from a governmental entity of a violation of law, whether by letter, memorandum, legal or administrative pleading, or other written communication.

124."Water table" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.

125."Willful violation" means an act or omission which violates North Dakota Century Code chapter 38-14.1, this article, or individual permit conditions committed by a person who intends the result which actually occurs.

126."Willfully" means, with respect to individual civil penalties, that an individual acted:

a.Either intentionally, voluntarily, or consciously; and

b.With intentional disregard or plain indifference to legal requirements in authorizing, ordering, or carrying out a corporate permittee's action or omission that constituted a violation, failure, or refusal.

127."Woodland" means land where the primary premining natural vegetation is trees or shrubs.

128."Woody plants" means trees, shrubs, half-shrubs, and woody vines.

History: Effective August 1, 1980; amended effective June 1, 1983; April 1, 1985; June 1, 1986;

January 1, 1987; May 1, 1990; May 1, 1992; June 1, 1997; May 1, 1999; March 1, 2004.

General Authority: NDCC 38-14.1-03, 38-14.1-38

Law Implemented: NDCC 38-14.1-02, 38-14.1-03, 38-14.1-21, 38-14.1-38 69-05.2-01-03. Promulgation of rules - Notice - Hearing.

1.The commission may propose new rules under this article or propose amendments or repealers of any rule under this article and will hold a public hearing in accordance with the procedures of this section.

2.Any person or governmental agency may petition the commission to adopt, amend, or repeal any rule under this article. Upon receipt of the petition, the commission will determine if the petition provides a reasonable basis for proposing the issuance, amendment, or repeal of a

rule.

3.If the petition has a reasonable basis, the commission will propose the rule, amendment, or repealer and hold a public hearing on the proposal.

4.The commission will issue a notice of the public hearing which will:

a.Furnish a brief explanation of the purpose of the proposed rule.

b.Specify a location where the text of the proposed rule may be reviewed.

c.Advise all interested persons of the opportunity to submit written comments and to appear and testify at the hearing to offer oral testimony.

d.Provide the address to which written comments may be sent.

e.Specify the date, time, and place of the hearing.

5.The commission will publish notice of hearing in newspapers and provide a copy of the proposed rules and notice to the legislative council as required by subsection 4 of North Dakota Century Code section 28-32-02.

6.The public comment period on the proposed adoption, amendment, or repeal of any rule under this article will close at the end of the public hearing, unless extended by the commission.

7.The commission will consider all written comments and oral testimony received before adoption, amendment, or repeal of any rule under this article and make a written record of its consideration.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992; May 1, 1999; May 1, 2001.

General Authority: NDCC 28-32-02, 38-14.1-03

Law Implemented: NDCC 28-32-02, 38-14.1-34, 38-14.1-41 69-05.2-01-04. Notice of citizen suits.

1.A person who intends to initiate a civil action on one's own behalf under North Dakota Century Code section 38-14.1-40 shall give notice of intent to do so.

2.Notice shall be given by certified mail to the commission.

3.Notice shall be given by certified mail to the alleged violator, if the complaint alleges a violation of North Dakota Century Code chapter 38-14.1, this article, a permit condition, or any commission order.

4.Service of notice is complete upon mailing to the last-known address of the person being notified.

5.A person giving notice regarding an alleged violation shall state, to the extent known:

a.Sufficient information to identify the provision of North Dakota Century Code chapter 38-14.1, this article, a permit or order allegedly violated.

b.The act or omission alleged to constitute a violation.

c.The name, address, and telephone numbers of the person or persons responsible for the alleged violation.

d.The date, time, and location of the alleged violation.

e.The name, address, and telephone number of the person giving notice.

f.The name, address, and telephone number of legal counsel, if any, of the person giving notice.

6.A person giving notice of an alleged failure by the commission to perform a mandatory act or duty under North Dakota Century Code chapter 38-14.1 or this article shall state, to the extent known:

a.The provision containing the mandatory act or duty allegedly not performed.

b.Sufficient information to identify the omission alleged to constitute the failure to perform a mandatory act or duty.

c.The name, address, and telephone number of the person giving notice.

d.The name, address, and telephone number of legal counsel, if any, of the person giving notice.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-40 69-05.2-01-05. Computation of time.

1.Except as otherwise provided, computation of time is based on calendar days.

2.In computing any period of prescribed time, the beginning day is not included. The last day is included unless it is a Saturday, Sunday, or legal holiday on which the commission is not open for business, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.

3.Intermediate Saturdays, Sundays, and legal holidays are excluded from the computation when the period is seven days or less.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-03 69-05.2-01-06. Intervention.

1.Any person, including any department, agency, or instrumentality of the state, local, or federal government, may petition to intervene at any stage of a proceeding conducted under North Dakota Century Code chapter 38-14.1 or this article.

2.The petitioner shall incorporate a statement setting forth the interest of the petitioner and, where required, a showing of why the interest is or may be adversely affected.

3.The commission will grant intervention where the petitioner:

a.Had a statutory right to initiate the proceeding in which the petitioner wishes to intervene; or

b.Has an interest which is or may be adversely affected by the outcome of the proceeding.

4.If neither subdivision a nor subdivision b of subsection 3 apply, the commission will consider the following in determining whether intervention is appropriate:

a.The nature of the issues;

b.The adequacy of representation of petitioner's interest which is provided by the existing parties to the proceeding;

c.The petitioner's ability to present relevant evidence and argument; and

d.The effect of intervention on the commission's implementation of its statutory mandate.

5.Any person, including any department, agency, or instrumentality of the state, local, or federal government, granted intervention in a proceeding may participate as a full party. If an intervenor wishes to participate in a limited capacity, the extent and terms of the participation will be in the discretion of the commission.

History: Effective June 1, 1983; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-03 69-05.2-01-07. Petitions for award of costs and expenses - Answer - Awards - Judicial review.

1.Any person may file a petition for an award of costs and expenses, including attorneys' fees, reasonably incurred as a result of participation in any administrative proceeding under North Dakota Century Code chapter 38-14.1 or this article, which results in a final order being issued by the commission.

2.The petition must be filed within forty-five days after receipt of the order. Failure to timely file may constitute a waiver of the right to an award.

3.The petition must include the name of the person from whom costs and expenses are sought, and:

a.An affidavit setting forth in detail all costs and expenses, including attorneys' fees, reasonably incurred for, or in connection with, participation in the proceeding;

b.Receipts or other evidence of those costs and expenses; and

c.Where attorneys' fees are claimed, evidence concerning the hours expended, the customary commercial rate for similar services in the area, and the experience, reputation, and ability of the individuals performing the services.

4.Any person served with a copy of the petition has thirty days from service to file an answer.

5.Appropriate costs and expenses, including attorneys' fees, may be awarded:

a.To any person from the permittee if the person initiates administrative proceedings reviewing enforcement actions, upon a finding that a violation of North Dakota Century Code chapter 38-14.1, this article, or the permit occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the commission determines that the person made a substantial contribution to the full and fair determination of the issues.

b.To any person, other than a permittee or the permittee's representative, from the commission if the person initiates or participates in any proceeding under North Dakota Century Code chapter 38-14.1 or this article upon a finding that the person made a substantial contribution to a full and fair determination of the issues.

c.To a permittee from the commission when the permittee demonstrates that the commission or its authorized representative issued a cessation order, a notice of violation, or an order to show cause why a permit should not be suspended or revoked, in bad faith and to harass or embarrass the permittee.

d.To a permittee from any person where the permittee demonstrates that the person initiated a proceeding under North Dakota Century Code section 38-14.1-30 or participated in the proceeding in bad faith to harass or embarrass the permittee.

e.To the commission where it demonstrates that any person applied for review pursuant to North Dakota Century Code section 38-14.1-30 or that any person participated in the proceeding in bad faith and to harass or embarrass the government.

6.An award under this section may include:

a.All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation or participation in a proceeding under North Dakota Century Code chapter 38-14.1 or this article; and

b.All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award.

7.Any person aggrieved by a decision on the award of costs and expenses in an administrative proceeding may seek review of the decision under North Dakota Century Code section 38-14.1-35.

History: Effective June 1, 1983; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-35, 38-14.1-36

Chapter 69-05.2-02 Restrictions on Financial Interests of Employees

N.D. Admin. Code 69-05.2-02 Restrictions on Financial Interests of Employees

CHAPTER 69-05.2-02

RESTRICTIONS ON FINANCIAL INTERESTS OF EMPLOYEES

Section 69-05.2-02-01Powers and Duties of the Commission Relative to Restrictions on Financial Interests 69-05.2-02-02Duties of Employees Relative to Restrictions on Financial Interests 69-05.2-02-03Penalty for Failure to File Statement 69-05.2-02-04Filing Dates 69-05.2-02-05Reporting Requirements 69-05.2-02-06Gifts and Gratuities 69-05.2-02-07Remedial Action to Resolve Prohibited Interests 69-05.2-02-08Appeal from Order for Remedial Action 69-05.2-02-09Permit Applications - Permit Monitoring Plans- Consolidation for Multiple Permit Operations 69-05.2-02-01. Powers and duties of the commission relative to restrictions on financial interests.

The commission will:

1.Advise, assist, and guide employees required to file statements under section 69-05.2-02-02.

2.Promptly review the statement filed by an employee on prohibited financial interests.

3.Resolve prohibited financial interests by remedial action or by reporting the violations to the director of the office of surface mining reclamation and enforcement who is responsible for seeking penalties.

4.Certify that each statement has been reviewed and any prohibited financial interests resolved.

5.Furnish a blank statement forty-five days before the filing date established by subsection 1 of

section 69-05.2-02-04 to each employee required to file a statement.

6.Annually inform each employee required to file a statement of the name, address, and telephone number of the person they may contact for advice and counseling. 69-05.2-02-02. Duties of employees relative to restrictions on financial interests.

Employees performing functions or duties under North Dakota Century Code chapter 38-14.1 shall:

1.Have no prohibited financial interests.

2.File a complete statement of employment and financial interest with the commission upon beginning employment and annually thereafter on the filing date.

3.Comply with directives issued by persons responsible for approving each statement and with directives issued by persons responsible for ordering remedial action. 69-05.2-02-03. Penalty for failure to file statement.

An employee who fails to file the required statement is subject to removal. 69-05.2-02-04. Filing dates.

1.Employees performing functions or duties under North Dakota Century Code chapter 38-14.1 shall file annually on February first or other date provided by the commission.

2.New employees hired, appointed, or transferred to perform functions or duties under North Dakota Century Code chapter 38-14.1 are required to fileupon beginning employment.

3.New employees are not required to file an annual statement on the subsequent annual filing date if this date occurs within two months after filing their initial statement. 69-05.2-02-05. Reporting requirements.

1.Each employee required to file a statement shall report40 , on the form provided by the commission40 , all employment and financial interests of the employee, the employee's spouse, minor children, or other relatives who are full-time residents of the employee's home.

2.All of the following financial interests must be listed:

a.Employment. Any continuing financial interests in business entities and nonprofit organizations through a pension or retirement plan, shared income, salary, or other income arrangement as a result of prior or current employment. The employee, the employee's spouse, or other resident relative is not required to report a retirement plan from which the employee will receive a guaranteed income. A guaranteed income is one unlikely to be changed as a result of commission actions.

b.Securities. Any financial interest in business entities and nonprofit organizations through ownership of stock, stock options, bonds, securities or other arrangements, including trusts. An employee is not required to report holdings in widely diversified mutual funds, investment clubs, or regulated investment companies not specializing in underground and surface coal mining operations.

c.Real property. Ownership, lease, royalty, or other interests or rights in land or minerals.

Employees are not required to report lands developed and occupied for a personal residence.

d.Creditors. Debts owed to business entities and nonprofit organizations. Employees are not required to report debts owed to financial institutions, such as banks, savings and loan associations, and credit unions, which are chartered to provide commercial or personal credit. Also excluded are charge accounts and similar short-term debts for current and ordinary household and living expenses.

3.Employee certification, and, if applicable, a listing of exceptions:

a.The statement will provide for a signed certification by the employee that to the best of the employee's knowledge:

(1)None of the listed financial interests represent a prohibited financial interest except as identified and described by the employee as part of the statement; and (2)The information shown on the statement is true, correct and complete.

b.An employee is expected to have complete knowledge of personal involvement in business enterprises such as a sole proprietorship and partnership, outside employment and the outside employment of the spouse and other covered relatives, and be aware of the information in the annual financial statement or other corporate or business reports circulated to investors or routinely made available to the public.

c.The exceptions shown in the certification must provide enough information for the commission to determine the existence of a direct or indirect financial interest.

Accordingly, the exceptions should:

(1)List the financial interests.

(2)Show the number of shares, estimated value, or annual income of the financial interests.

(3)Include any other information which the employee believes should be considered in determining whether the interest is prohibited.

d.Employees are cautioned to give serious consideration to their direct and indirect financial interests before signing the statement of certification. Signing the certification without listing known prohibited financial interests may be cause for imposing penalties. 69-05.2-02-06. Gifts and gratuities.

1.Except as provided in subsection 2, employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan, or any other thing of monetary value from a coal company which:

a.Conducts, or is seeking to conduct, operations or activities regulated by the commission; or

b.Has interests that may be substantially affected by the performance or nonperformance of the employee's official duty.

2.The prohibitions in subsection 1 do not apply in the context of obvious family or personal relationships, such as those between the parents, children, or spouse of the employee and the employer, when the circumstances make it clear that it is those relationships rather than the business of the persons concerned which are the motivating factors. An employee may accept:

a.Food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon, dinner, or other meeting where an employee may properly be in attendance; and

b.Unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars, and other items of nominal value.

3.An employee who violates the provisions of this section shall be subject to removal. 69-05.2-02-07. Remedial action to resolve prohibited interests.

1.Remedial action to effect resolutions. If an employee has a prohibited financial interest, the commission will promptly order the employee to resolve it within ninety days.

2.Remedial action may include:

a.Reassignment to a position having no function or duty under North Dakota Century Code

chapter 38-14.1;

b.Divestiture of the prohibited financial interest; or

c.Other appropriate action which either eliminates the prohibited interest or eliminates the situation which creates the conflict.

3.Reports of noncompliance. The commission will report unresolved cases to thedirector of the office of surface mining reclamation and enforcement who will determine whether to seek penalties. The report will include the original or a certified copy of the employee's statement and any other pertinent information, including a statement of current actions. 69-05.2-02-08. Appeal from order for remedial action.

Any employee aggrieved by a commission order to resolve prohibited financial interests may submit a request for review to the commission secretary within thirty days. The commission will act on the request within thirty days and notify the aggrieved employee of the decision in writing. If the employee does not agree with the written decision, the employee may appeal, in writing, to the director of the central personnel division for a review.

Chapter 69-05.2-03 Exemption for Coal Extraction Incident to Government-Financed Highway or Other Construction

N.D. Admin. Code 69-05.2-03 Exemption for Coal Extraction Incident to Government-Financed Highway or Other Construction

CHAPTER 69-05.2-03

EXEMPTION FOR COAL EXTRACTION INCIDENT TO GOVERNMENT-FINANCED

HIGHWAY OR OTHER CONSTRUCTION

Section 69-05.2-03-01Incidental Coal Extraction - Possession of Documents 69-05.2-03-02Incidental Coal Extraction - Information to be Maintained on Site 69-05.2-03-01. Incidental coal extraction - Possession of documents.

Any person conducting coal extraction as an incidental part of government-financed construction is responsible for possessing, onsite, the documentation required by section 69-05.2-03-02.

History: Effective August 1, 1980; amended effective May 1, 1990.

General Authority: NDCC 38-14.1-03

Law Implemented: NDCC 38-14.1-37 69-05.2-03-02. Incidental coal extraction - Information to be maintained onsite.

Any person extracting coal incident to government-financed highway or other construction who extracts more than two hundred fifty tons [226.80 metric tons] shall maintain, onsite, documents which:

1.Describe the project.

2.Show the exact location of the construction, right of way, or the boundaries of the area which will be directly affected.

3.Identify the government agency providing the financing and the kind and amount of public financing, including the percentage of all costs represented by the government financing.

History: Effective August 1, 1980; amended effective May 1, 1990.

General Authority: NDCC 38-14.1-03

Law Implemented: NDCC 38-14.1-37

Chapter 69-05.2-04 Areas Unsuitable for Mining

N.D. Admin. Code 69-05.2-04 Areas Unsuitable for Mining

CHAPTER 69-05.2-04

AREAS UNSUITABLE FOR MINING

Section 69-05.2-04-01Areas Unsuitable for Mining - Permit Application Review Procedures [Repealed] 69-05.2-04-01.1Areas Unsuitable for Mining - Areas Where Surface Coal Mining Operations Are Prohibited or Limited 69-05.2-04-01.2Areas Unsuitable for Mining - Exception for Existing Operations From Areas Where Mining is Prohibited 69-05.2-04-01.3Areas Unsuitable for Mining - Procedures for Relocating or Closing a Public Road or Waiving the Buffer Zone for a Public Road 69-05.2-04-01.4Areas Unsuitable for Mining - Procedures for Waiving the Prohibition on Mining Within the Buffer Zone Around an Occupied Dwelling 69-05.2-04-01.5Areas Unsuitable for Mining - Submission of Requests for Valid Existing Rights Determinations 69-05.2-04-01.6Areas Unsuitable for Mining - Processing Requests for Valid Existing Rights Determinations 69-05.2-04-01.7Areas Unsuitable for Mining - Commission Obligations at Time of Permit Application Review 69-05.2-04-02Areas Unsuitable for Mining - Exploration 69-05.2-04-03Areas Unsuitable for Mining - Petitions for Designating Lands Unsuitable 69-05.2-04-04Areas Unsuitable for Mining - Initial Processing - Recordkeeping - Notification Requirements for Designating Lands Unsuitable 69-05.2-04-05Areas Unsuitable for Mining - Hearing Requirements for Designating Lands Unsuitable 69-05.2-04-06Areas Unsuitable for Mining - Commission Decision for Designating Lands Unsuitable 69-05.2-04-07Areas Unsuitable for Mining - Data Base and Inventory System for Designating Lands Unsuitable 69-05.2-04-08Areas Unsuitable for Mining - Public Information for Designating Lands Unsuitable 69-05.2-04-09Areas Unsuitable for Mining - Commission Responsibility for Implementation for Designating Lands Unsuitable 69-05.2-04-01. Areas unsuitable for mining - Permit application review procedures.

Repealed effective March 1, 2004. 69-05.2-04-01.1. Areas unsuitable for mining - Areas where surface coal mining operations are prohibited or limited.

1.Unless the permit applicant has valid existing rights as determined under section 69-05.2-04-01.5 or qualifies for the exception for existing operations under section 69-05.2-04-01.2, surface coal mining operations must not be located:

a.On any lands listed in subsections 1 through 5 of North Dakota Century Code section 38-14.1-07.

b.Within the boundaries of study rivers or study river corridors established in any guidelines issued under the Wild and Scenic Rivers Act [16 U.S.C. 1276(a)].

2.The commission will not issue a permit or approve an incidental boundary revision for mining on federal lands within a national forest before the secretary of the United States department of the interior, under 30 CFR 761, finds that:

a.There are no significant recreational, timber, economic, or other values that may be incompatible with surface coal mining operations; and

b.With respect to lands that do not have significant forest cover within national forests west of the one hundredth meridian, the secretary of the United States department of agriculture has determined that surface mining is in compliance with the Surface Mining Reclamation and Control Act of 1977 [30 U.S.C. 1201 et seq.]; the Multiple-Use Sustained Yield Act of 1960 [16 U.S.C. 528-531]; the Federal Coal Leasing Amendments Act of 1975 [30 U.S.C. 181 et seq.]; and the National Forest Management Act of 1976 [16 U.S.C. 1600 et seq.].

3.The prohibition on surface coal mining activities being within one hundred feet [30.48 meters], measured horizontally, of the outside right-of-way line of any public road does not apply:

a.Where a mine access or haul road joins a public road; or

b.When, as provided by section 69-05.2-04-01.3, the commission or the appropirate public road authority with jurisdiction over the road allows the road to be relocated or closed, or the area within the protected zone to be affected by the surface coal mining operation.

4.The prohibition on surface coal mining activities being within five hundred feet [152.40 meters], measured horizontally, of any occupied dwelling does not apply if the owner of the dwelling has provided a written waiver consenting to surface coal mining operations within the protected zone as provided in section 69-05.2-04-01.4.

5.The prohibition on surface coal mining activities within one hundred feet [30.48 meters], measured horizontally, of a cemetery does not apply if the cemetery is relocated in accordance with all applicable laws and rules. 69-05.2-04-01.2. Areas unsuitable for mining - Exception for existing operations from areas where mining is prohibited.

The prohibitions and limitations of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 do not apply to coal mining operations for which a valid permit existed when the land came under these protections. This exception applies only to lands that were permitted for mining on August 3, 1977. 69-05.2-04-01.3. Areas unsuitable for mining - Procedures for relocating or closing a public road or waiving the buffer zone for a public road.

1.This section does not apply to:

a.Lands for which a person has valid existing rights, as determined under section 69-05.2-04-01.5.

b.Lands within the scope of the exception for existing operations in section

c.Access or haul roads that join a public road.

2.The applicant must obtain any necessary approvals from the authority with jurisdiction over the road before:

a.Relocating a public road;

b.Closing a public road; or

c.Conducting surface coal mining operations within one hundred feet [30.48 meters], measured horizontally, of the outside right-of-way line of a public road.

3.Before approving an action proposed under subsection 2, the commission, or the public road

authority with jurisdiction over the road, must determine that the interests of the public and affected landowners will be protected. Before making this determination, the commission will, if not included in the road authority's approval process:

a.Provide a public comment period and opportunity to request a public hearing in the locality of the proposed operation.

b.If a public hearing is requested, publish appropriate advance notice at least two weeks before the hearing in a newspaper of general circulation in the affected locality.

c.Based upon information received from the public, make a written finding as to whether the interests of the public and affected landowners will be protected. If the commission holds a hearing, this finding will be made within thirty days after the hearing. However, if no public hearing is held and the commission makes this written finding, it may be delayed until the permit is issued.

4.Copies of the road authority's approval documents, including the written finding, must be provided to the commission. 69-05.2-04-01.4. Areas unsuitable for mining - Procedures for waiving the prohibition on mining within the buffer zone around an occupied dwelling.

1.This section does not apply to:

a.Lands for which a person has valid existing rights, as determined under section 69-05.2-04-01.5.

b.Lands within the scope of the exception for existing operations in section

2.If the applicant proposes to conduct surface coal mining operations within five hundred feet [152.40 meters], measured horizontally, of any occupied dwelling, the permit application must include a written waiver by lease, deed, or other conveyance from the owner of the dwelling.

The waiver must clarify that the owner and signator had the legal right to deny mining and knowingly waived that right. The waiver will act as consent to surface coal mining operations within a closer distance of the dwelling as specified.

3.If the applicant obtained a valid waiver before August 3, 1977, from the owner of an occupied dwelling to conduct operations within five hundred feet [152.40 meters] of the dwelling, a new waiver is not needed.

4.If the applicant obtains a valid waiver from the owner of an occupied dwelling, that waiver will remain effective against subsequent purchasers who had actual or constructive knowledge of the existing waiver at the time of purchase. A subsequent purchaser will be deemed to have constructive knowledge if the waiver has been properly filed with the recorder in the county where the dwelling is located or if surface coal mining operations have occurred within the five-hundred-foot [152.40-meter] zone before the date of purchase. 69-05.2-04-01.5. Areas unsuitable for mining - Submission of requests for valid existing rights determinations.

1.Except for certain federal lands, the commission is responsible for making valid existing rights determinations based on the definition of valid existing rights in section 69-05.2-01-02. The office of surface mining reclamation and enforcement must make the determination on federal lands within:

a.The national park system.

b.The national wildlife refuge systems.

c.The national system of trails.

d.The national wilderness preservation system.

e.The national wild and scenic rivers system, including study rivers and corridors.

f.National recreation areas.

g.A national forest.

2.A request for a valid existing rights determination may be submitted before preparing and submitting an application for a permit or incidental boundary revision for the land. The request must include the following:

a.A property rights demonstration under subdivision a of the definition of valid existing rights in section 69-05.2-01-02 if the request relies upon the "all permits or good-faith standard" or the "needed for and adjacent standard" in subdivision b of that definition.

The demonstration must include the following items:

(1)A legal description of the land to which the request pertains.

(2)Complete documentation of the character and extent of the applicant's current interests in the surface and mineral estates of the land to which the request pertains.

(3)A complete chain of title for the surface and mineral estates of the land to which the request pertains.

(4)A description of the nature and effect of each title instrument that forms the basis for the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities.

(5)A description of the type and extent of surface coal mining operations that the applicant claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how those operations would be consistent with state property law.

(6)Complete documentation of the nature and ownership, as of the date that the land came under the protection of North Dakota Century Code section 38-14.1-07 and

section 69-05.2-04-01.1, of all property rights for the surface and mineral estates of the land to which the request pertains.

(7)Names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains.

(8)If the coal interests have been severed from other property interests, documentation that the applicant has notified and provided reasonable opportunity for the owners of other property interests in the land to which the request pertains to comment on the validity of claimed property rights.

(9)Any comments that the applicant receives in response to the notification provided under paragraph 8.

b.If the request relies upon the all permits or good-faith standard in paragraph 1 of subdivision b of the definition of valid existing rights in section 69-05.2-01-02, the information required under subdivision a must be submitted. In addition, the following must be provided:

(1)Approval and issuance dates and identification numbers for any permits, licenses, and authorizations that the applicant or a predecessor in interest obtained before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.

(2)Application dates and identification numbers for any permits, licenses, and authorizations for which the applicant or a predecessor in interest submitted an application before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.

(3)An explanation of any other good-faith effort that the applicant or a predecessor in interest made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.

c.If the request relies upon the "needed for and adjacent standard" in paragraph 2 of subdivision b of the definition of valid existing rights in section 69-05.2-01-02, the information required under subdivision a must be submitted. In addition, an explanation must be provided to explain how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including a demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.

d.If the request relies upon one of the standards for roads in paragraphs 1, 2, and 3 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, satisfactory documentation must be submitted to show that:

(1)The road existed when the land upon which it is located came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 and the applicant has a legal right to use the road for surface coal mining operations;

(2)A properly recorded right of way or easement for a road in that location existed when the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 and, under the document creating the right of way or easement and under any subsequent conveyances, the applicant has a legal right to use or construct a road across that right of way or easement to conduct surface coal mining operations; or (3)A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.

Law Implemented: NDCC 38-14.1-02, 38-14.1-04, 38-14.1-07 69-05.2-04-01.6. Areas unsuitable for mining - Processing requests for valid existing rights determinations.

1.The commission will conduct an initial review to determine whether the request includes all applicable components of the submission requirements of section 69-05.2-04-01.5. This review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

2.If the request does not include all applicable components of the submission requirements of

section 69-05.2-04-01.5, the commission will notify the applicant and establish a reasonable time for submission of the missing information.

3.When the request includes all applicable components of the submission requirements of

section 69-05.2-04-01.5, the commission will notify the applicant and implement the notice and comment requirements of subsection 5. Upon receipt of that notice, the applicant must file a copy of the request in the office of the county auditor of the county in which the land is located.

4.If the applicant does not provide information that the commission requests under subsection 2 within the time specified or as subsequently extended, the commission will issue a determination that valid existing rights have not been demonstrated, as provided by subdivision d of subsection 6.

5.Notice and comment requirements and procedures.

a.When the request satisfies the completeness requirements of subsection 3, the commission will notify the applicant to publish a notice in a newspaper of general circulation in the county in which the land is located. This notice must invite comment on the merits of the request. A copy of the published notice must be provided to the commission. The notice must include:

(1)The location of the land to which the request pertains.

(2)A description of the type of surface coal mining operations planned.

(3)A reference to and brief description of the applicable standards under the definition of valid existing rights in subsection 120 of section 69-05.2-01-02.

(a)If the request relies upon the all permits or good-faith standard or the needed for and adjacent standard in the definition of valid existing rights, the notice also must include a description of the property rights that are claimed by the applicant and the basis of that claim.

(b)If the request relies upon the standard in paragraph 1 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, the notice also must include a description of the basis for the claim that the road existed when the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1. In addition, the notice must include a description of the basis for the applicant's claim to a legal right to use that road for surface coal mining operations.

(c)If the request relies upon the standard in paragraph 2 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, the notice also must include a description of the basis for the claim that a properly recorded right of way or easement for a road in that location existed when the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1. In addition, the notice must include a description of the basis for the claim that, under the document creating the right of way or easement, and under any subsequent conveyances, the applicant has a legal right to use or construct a road across the right of way or easement to conduct surface coal mining operations.

(4)If the request relies upon one or more of the standards in subdivision b and paragraphs 1 and 2 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, a statement that the commission will not make a decision on the merits of the request if, by the close of the comment period under this notice or the notice required by subdivision c, a person with a legal interest in the land initiates appropriate legal action in the proper venue to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the valid existing rights claim.

(5)A description of the procedures that the commission will follow in processing the request as required by this section.

(6)The closing date of the comment period, which must be a minimum of thirty days after the publication date of the notice.

(7)A statement that interested persons may obtain a thirty-day extension of the comment period upon request.

(8)The name and address of the commission and county auditor's office where copies of the request are available for public inspection and that comments and requests for extension of the comment period be sent to the commission.

b.The commission will promptly provide a copy of the notice required under subdivision a to:

(1)All reasonably locatable owners of surface and mineral estates in the land included in the request.

(2)The owner of the feature causing the land to come under the protection of North Dakota Century Code section 38-14.1-07, and, when applicable, the agency with primary jurisdiction over that feature. For example, both the landowner and the state historic preservation officer must be notified if surface coal mining operations would adversely impact any site listed on the national register of historic places.

c.The letter transmitting the notice required under subdivision b must provide a thirty-day comment period, starting from the date of service of the letter, and specify that another thirty days is available upon request. At its discretion, the commission may grant additional time for good cause upon request; however, comments received after the closing date of the comment period do not necessarily have to be considered.

6.Commission decision process.

a.The commission will review the materials submitted under subsection 2 of section 69-05.2-04-01.5, comments received under subsection 5, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the commission will notify the applicant in writing, explaining the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information that it deems necessary to remedy the inadequacy.

b.Once the record is complete and adequate, the commission will determine if valid existing rights have been demonstrated. The decision document will explain whether or not all applicable elements of the definition of valid existing rights have been satisfied. It will contain findings of fact and conclusions and specify the reasons for the conclusions.

c.The following apply only when the request relies upon one or more of the standards in subdivision b and paragraphs 1 and 2 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02.

(1)The commission will issue a determination that valid existing rights have not been demonstrated if the property rights claimed in the request are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The commission will make this determination without prejudice, meaning that the applicant may refile the request once the property rights dispute is finally adjudicated. This paragraph applies only to situations in which legal action has been initiated as of the closing date of the comment period under subdivisions a and c of subsection 5.

(2)If the record indicates disagreement as to the accuracy of the property rights claimed, but this disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the commission will evaluate the merits of the information in the record and determine whether the requisite property rights that have been demonstrated exist under subdivision a and paragraphs 1 and 2 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, as appropriate. The commission will then proceed with the decision process under subdivision b.

d.The commission will issue a determination that valid existing rights have not been demonstrated if information requested under subsection 2 or subdivision a is not submitted within the time specified or as subsequently extended. The commission will make this determination without prejudice, meaning that the applicant may refile a revised request at any time.

e.After making a determination, the commission will:

(1)Provide a copy of the determination, together with an explanation of appeal rights and procedures, to the applicant, surface and mineral owners of the land to which the determination applies, owner of the feature causing the land to come under the protection, and, when applicable, the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection.

(2)Publish notice of the determination in a newspaper of general circulation in the county in which the land is located. This notice will include an explanation of appeal rights under subsection 7.

7.A valid existing rights determination is subject to administrative and judicial review under North Dakota Century Code sections 38-14.1-30 and 38-14.1-35.

8.Except as provided by subsection 6 of section 69-05.2-10-01, the commission will make the valid existing rights request and all related records available to the public as required by subsection 3 of North Dakota Century Code section 38-14.1-13 and provide copies of records to the appropriate county auditor as required by subsection 5 of North Dakota Century Code

section 38-14.1-27.

Law Implemented: NDCC 38-14.1-02, 38-14.1-04, 38-14.1-07 69-05.2-04-01.7. Areas unsuitable for mining - Commission obligations at time of permit application review.

1.Upon receipt of an administratively complete permit application or revision application that proposes to add acreage to the permit, the commission will review the application to determine whether the proposed surface coal mining operation would be located on any lands protected under North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.

2.The commission will reject any portion of the application that would locate surface coal mining operations on land protected under North Dakota Century Code section 38-14.1-07 and

section 69-05.2-04-01.1 unless:

a.The site qualifies for the exception for existing operations under section 69-05.2-04-01.2;

b.A person has valid existing rights for the land, as determined under section 69-05.2-04-01.6;

c.The applicant obtains a waiver or exception from certain prohibitions in accordance with sections 69-05.2-04-01.3 and 69-05.2-04-01.4; or

d.For lands protected by subsection 3 of North Dakota Century Code section 38-14.1-07, both the commission and the agency with jurisdiction over the park or place jointly approve the proposed operation in accordance with subsection 4.

3.If the commission has difficulty determining whether an application includes land within an area specified in subsection 1 of North Dakota Century Code section 38-14.1-07, subdivision b of subsection 1 of section 69-05.1-04-01.1, or within the specified distance from a structure or feature listed in subsection 5 of North Dakota Century Code section 38-14.1-07, the commission will request that any federal, state, or local governmental agency with jurisdiction over the protected land, structure, or feature verify the location.

a.The request for location verification must:

(1)Include relevant portions of the permit application.

(2)Provide the agency with thirty days after receipt to respond, with a notice that another thirty days is available upon request.

(3)Specify that the commission will not necessarily consider a response received after the comment period in paragraph 2.

b.If the agency does not respond in a timely manner, the commission may make the necessary determination based on available information.

4.The following are procedures for joint approval of surface coal mining operations that will adversely affect publicly owned parks or historic places.

a.If the commission determines that the proposed surface coal mining operation will adversely affect any publicly owned park or any place included in the national register of historic places, the commission will request that the federal, state, or local agency with jurisdiction over the park or place either approve or object to the proposed operation. The request will:

(1)Include a copy of applicable parts of the permit application.

(2)Provide the agency with thirty days after receipt to respond, with a notice that another thirty days is available upon request.

(3)State that failure to interpose an objection within the time specified under paragraph 2 will constitute approval of the proposed operation.

b.The commission may not issue a permit for a proposed operation subject to subdivision a unless all affected agencies jointly approve.

c.Subdivisions a and b do not apply to:

(1)Lands for which a person has valid existing rights, as determined under section 69-05.2-04-01.6.

(2)Lands within the scope of the exception for existing operations in section 69-05.2-04-02. Areas unsuitable for mining - Exploration.

Designation of any area as unsuitable for all or certain types of surface coal mining operations under North Dakota Century Code section 38-14.1-05 and this chapter does not prohibit coal exploration operations if conducted according to North Dakota Century Code chapter 38-12.1 and

chapter 43-02-01. Exploration operations on lands designated unsuitable for mining must be approved by the appropriate state agency to ensure that exploration does not interfere with any value for which the area was designated unsuitable.

Law Implemented: NDCC 38-14.1-08 69-05.2-04-03. Areas unsuitable for mining - Petitions for designating lands unsuitable.

1.Right to petition. Any person having an interest which is or may be adversely affected may petition the commission to designate an area unsuitable for surface coal mining operations, or terminate an existing designation. Petitions must be in writing, and signed and acknowledged by the petitioner.

2.Designation. A petition to designate must include:

a.A United States geological survey topographic map showing the perimeter, location, and size of the area.

b.Allegations of facts, covering all lands in the petition area, which tend to establish that the area is unsuitable for all or certain types of mining operations. This information must meet the criteria in North Dakota Century Code section 38-14.1-05 and assume that mining practices required under this article would be followed if the area were to be mined. Each of the allegations should be specific as to the mining operation, if known, and the portion of the petitioned area and the petitioner's interests, and be supported by evidence that tends to establish the validity of the allegation for the mining operation or portion of the area.

c.A description of how mining the area has affected or may adversely affect people, land, air, water, or other resources.

d.The petitioner's name, address, and telephone number.

e.The petitioner's interest which is or may be adversely affected.

f.Any other readily available information required by the commission.

3.Termination. A petition to terminate must include:

a.A United States geological survey topographic map showing the perimeter, location, and size of the area.

b.Allegations of facts covering all lands for which termination is proposed. Each allegation must be specific as to the mining operation, if any, and to the portions of the area and petitioner's interests to which the allegation applies. The allegations must be supported by evidence not contained in the record of the designation proceeding that tends to establish their validity for the mining operation or portion of the area, assuming that mining practices required under this article would be followed were the area to be mined.

For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented. Allegations and supporting evidence should be specific to the basis for which the designation was made and tend to establish that the designation should be terminated on the following bases:

(1)The nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on subsection 2 of North Dakota Century Code section 38-14.1-05;

(2)Reclamation now being technologically and economically feasible, if the designation was based on subsection 1 of North Dakota Century Code section 38-14.1-05; or (3)The resources or condition not being affected by surface coal mining operations, or in the case of land use plans, not being incompatible with those operations during and after mining, if the designation was based on subsection 2 of North Dakota Century Code section 38-14.1-05.

c.The petitioner's name, address, and telephone number.

d.The petitioner's interest which is or may be adversely affected by continuation of the designation.

e.Any other readily available information required by the commission.

Law Implemented: NDCC 38-14.1-06 69-05.2-04-04. Areas unsuitable for mining - Initial processing - Recordkeeping - Notification requirements for designating lands unsuitable.

1.Within thirty days of receipt of a petition, the commission will notify the petitioner by certified mail whether the petition is complete under section 69-05.2-04-03.

2.The commission will determine whether any identified coal resources exist in the area covered by the petition, without requiring any showing from the petitioner. If the commission finds no identified coal resources in that area, it will return the petition with a statement of findings.

3.The commission may reject frivolous petitions and those not stating a prima facie case. Once the requirements of section 69-05.2-04-03 are met, no party shall bear any burden of proof, but each accepted petition will be considered and acted upon under the procedures of this

chapter.

4.When considering a petition for an area which was previously and unsuccessfully proposed for designation, the commission will determine if the new petition presents new allegations of facts. If not, the commission will return it, with a statement of findings and a reference to the record of the previous designation proceedings.

5.If the commission determines that the petition is incomplete or frivolous, the commission will return it with a written statement of the reasons and, in the case of an incomplete petition, the information needed to make the petition complete. A petitioner to whom an incomplete petition has been returned shall have thirty days from the date the petitioner receives the commission's written statement to resubmit the petition. The permit application review period provided by subsection 3 of section 69-05.2-05-01 will be suspended until the petition is resubmitted or the additional thirty-day period has expired, whichever occurs first.

6.The commission will notify the petitioner of any permit application received which proposes to include any area covered by the petition.

7.Any petition received after the close of the public comment period specified in subsection 1 of North Dakota Century Code section 38-14.1-18 on a permit application relating to the same permit area will not prevent the commission from issuing a decision on that application. The commission may return any petition received thereafter with a statement why the commission cannot consider the petition.

8.The commission will promptly notify the public of receipt of a petition by an advertisement in the local newspaper and the newspaper of broadest circulation in the region of the petitioned area. The commission will circulate copies of the petition to, and request submissions of relevant information from, other interested governmental agencies, the petitioner, intervenors, persons with an ownership interest of record, and other persons known to the commission to have an interest in the property.

9.Within three weeks after the determination that a petition is complete, the commission will notify the general public of its receipt and request relevant information through a newspaper advertisement placed once a week for two consecutive weeks in the official newspaper of each county containing the petitioned area and in other daily newspapers of general circulation in the locality covered by the petition.

10.Until three days before the commission holds a hearing under section 69-05.2-04-05, any person may intervene by filing allegations of facts, supporting evidence, a short statement identifying the petition to which the allegations pertain, and the intervenor's name, address, and telephone number.

11.Beginning immediately after a complete petition is filed, the commission will compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the commission. The commission will make the record available in its offices for public inspection free of charge, and copying, at a reasonable cost, during normal business hours.

The commission will also file a copy of the complete petition and copies of all other documents relating to the petition with the relevant county auditors.

Law Implemented: NDCC 38-14.1-04, 38-14.1-06, 38-14.1-09, 38-14.1-18 69-05.2-04-05. Areas unsuitable for mining - Hearing requirements for designating lands

1.Within ten months after receipt of a complete petition, the commission will hold a public hearing in the locality of the area covered by the petition. If all petitioners and intervenors agree, the hearing need not be held prior to the commission's decision. If a hearing is held, the commission will make a record.

2.Not less than thirty days before the hearing, the commission will give notice by certified mail of the date, time, and location of the hearing to:

a.Local, state, and federal agencies which may have an interest in the decision.

b.The petitioner and intervenors.

c.Any person with an ownership or other interest known to the commission in the area covered by the petition.

3.The last publication of the notice of hearing required by subsection 3 of North Dakota Century Code section 38-14.1-06 must occur no more than seven days before the hearing.

Law Implemented: NDCC 38-14.1-04, 38-14.1-05, 38-14.1-06 69-05.2-04-06. Areas unsuitable for mining - Commission decision for designating lands

1.In reaching its decision, the commission will use:

a.The information contained in the data base and inventory system.

b.Information provided by other governmental agencies.

c.The detailed statement prepared under subsection 3 of North Dakota Century Code

section 38-14.1-05.

d.Any other relevant information submitted during the comment period.

2.The commission will issue a final written decision, including a statement of reasons, within sixty days of completion of the public hearing, or, if no public hearing is held, within twelve months after receipt of the complete petition. The commission will serve the decision by certified mail on the petitioner, other parties to the proceeding, and the office of surface mining reclamation and enforcement.

3.The decision of the commission on a petition, or the failure of the commission to act within the time limits set forth in this section, is subject to review under North Dakota Century Code

section 38-14.1-35.

Law Implemented: NDCC 38-14.1-04, 38-14.1-35 69-05.2-04-07. Areas unsuitable for mining - Data base and inventory system for designating lands unsuitable.

1.The commission will develop a data base and inventory system to evaluate if reclamation is feasible in areas covered by petitions.

2.The commission will include in the system information relevant to the criteria in North Dakota Century Code section 38-14.1-05 from appropriate state and federal agencies.

3.The commission will add to the data base and inventory system information:

a.On potential coal resources of the state, demand for those resources, the environment, the economy, and the supply of coal, sufficient to enable the commission to prepare the statements required by subsection 3 of North Dakota Century Code section 38-14.1-05; and

b.That becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations, and other sources.

History: Effective August 1, 1980; amended effective May 1, 1990; July 1, 1995. 69-05.2-04-08. Areas unsuitable for mining - Public information for designating lands The commission will:

1.Make the information and data base system developed under section 69-05.2-04-07 available to the public for inspection free of charge and for copying at reasonable cost.

2.Provide information to the public on the petition procedures necessary to have an area designated unsuitable or to have designations terminated and describe how the inventory and data base system can be used. 69-05.2-04-09. Areas unsuitable for mining - Commission responsibility for implementation for designating lands unsuitable.

The commission will:

1.Not issue permits which are inconsistent with designations made under North Dakota Century Code chapter 38-14.1 and this article.

2.Maintain a map of areas designated as unsuitable for all or certain types of mining operations.

3.Make available to any person information within its control regarding designations, including mineral or elemental content which is potentially toxic in the environment, but excepting proprietary information on the chemical and physical properties of the coal according to subsection 3 of North Dakota Century Code section 38-14.1-13.

Chapter 69-05.2-05 Permit Applications - General Requirements

N.D. Admin. Code 69-05.2-05 Permit Applications - General Requirements

CHAPTER 69-05.2-05

PERMIT APPLICATIONS - GENERAL REQUIREMENTS

Section 69-05.2-05-01Permit Application Filing - Completeness Review - Review Period 69-05.2-05-02Permit Applications - General Requirements for Format and Contents 69-05.2-05-03Permit Applications - Fees [Repealed] 69-05.2-05-04Permit Applications - Verification 69-05.2-05-05Permit Applications - Reapplication for Permit Under Approved State Program [Repealed] 69-05.2-05-06Permit Applications - Coordination With Requirements Under Other Laws 69-05.2-05-07Permit Applications - Permit Area Determination - Porcelanite, Sand, and Gravel Borrow Pits 69-05.2-05-08Permit Applications - Permit Term 69-05.2-05-09Permit Applications - Consolidation for Multiple Permit Operations 69-05.2-05-01. Permit application filing - Completeness review - Review period.

1.General.

a.Each operator or permittee who conducts or expects to conduct surface coal mining and reclamation operations shall file a complete permit application. For purposes of North Dakota Century Code section 38-14.1-18, the time of filing means the date on which the commission notifies the applicant the application is complete.

b.Each applicant shall submit four copies of the complete application and all required materials to the commission. When federal lands are in the permit area, three copies shall be submitted to the commission and additional copies, as required, submitted to the office of surface mining reclamation and enforcement and bureau of land management.

Each applicant shall also submit additional copies or portions of copies as necessary for reclamation advisory committee review. Applications may be submitted in an electronic format that has been approved by the commission.

2.Completeness review. The commission will determine whether the application is complete and acceptable for further review. The commission will notify the applicant in writing, within thirty days after the application is filed, as to whether the application is complete and whether public notice required by North Dakota Century Code section 38-14.1-18 may be initiated or specify deficiencies which must be corrected in order to make the application complete and acceptable for further review. The thirty-day completeness review period is counted as a part of the one hundred twenty-day period specified in subsection 3. If the application is substantially deficient, it will be rejected and returned.

3.Review period. The commission will have one hundred twenty days after the filing date to review and approve or disapprove the application and notify the applicant of the decision.

a.The review period will be suspended until application deficiencies are corrected. The commission will advise the applicant, in writing, of its decision to suspend the period, reasons for suspension, the number of days remaining in the period, and what must be done for the review to continue.

b.The commission will not issue a decision if an informal conference or formal hearing has been requested under chapter 69-05.2-10 and North Dakota Century Code section 38-14.1-30, and those proceedings cannot be conducted and a decision issued within the normal review period.

4.Extension of review period. The commission may extend the period not to exceed an additional one hundred twenty days if:

a.The commission requires additional time to conduct an informal conference or a formal hearing or complete the decision process under chapter 69-05.2-10 and North Dakota Century Code section 38-14.1-30.

b.Significant changes are submitted that in the commission's judgment require additional time to review. The commission may require additional public notification and advisory committee review of the amended application under chapter 69-05.2-10.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; March 1, 2004.

Law Implemented: NDCC 38-14.1-10, 38-14.1-20, 38-14.1-21 69-05.2-05-02. Permit applications - General requirements for format and contents.

1.Applications for mining permits must be filed in the format required by the commission. The applicant shall provide information that is complete, current, presented clearly and concisely, and supported by appropriate references to technical and other written material available to the commission.

2.All technical analyses must be planned by or under the direction of an individual qualified in that subject, and data submitted in the permit application shall be accompanied by:

a.Names of persons or organizations that collected and analyzed the data.

b.Dates of collection and analyses.

c.Descriptions of methodology used.

3.The application must provide the name, address, and position of officials of each private or academic research organization or governmental agency consulted in preparing information on land uses, soils, geology, vegetation, fish and wildlife, water quantity and quality, air quality, and archaeological, cultural, and historic features.

4.The commission may alter the application forms for permits, revisions, renewals, bonds, and operation and reclamation plans, and add to or delete from the information required, consistent with North Dakota Century Code chapter 38-14.1 and this article. Operators will be given reasonable advance notice of changes.

5.Maps and plans - general requirements.

a.Maps submitted with applications must be presented in a consolidated format, to the extent possible. When appropriate, the types of information found on 1:24,000 scale United States geological survey topographic maps must be included. Permit area map scales must be 1:4,800 or larger. Maps showing lands and water in adjacent areas must be at a scale no smaller than 1:24,000.

b.Change in map scales. The commission may approve requests for map scale changes.

6.Applications may be filed in an electronic format acceptable to the commission. All text, tables, spreadsheets, maps, and other information must be presented in a clear and concise manner and in a format that can be easily viewed using standard computer software. Changes to original and approved narratives must be displayed in an underline-strikethrough format until the application is approved by the commission. Similarly, tables that are revised must be highlighted or otherwise clearly marked to identify all changes. Maps included in an electronic submittal must depict the entire permit area when the scale allows and include the dimensions at which it can be printed, the scale of the map, a scale bar, and north arrow. Details on the map must be legible at the printed size; however, if text is not legible, color coding or other means of identification may be used and represented in the legend. Print size should not exceed forty-eight inches in width. Each electronic document must also include a date stamp or other marking that clearly shows the date the document was last revised.

History: Effective August 1, 1980; amended effective May 1, 1990; April 1, 2013.

Law Implemented: NDCC 38-14.1-11, 38-14.1-13, 38-14.1-14, 38-14.1-15 69-05.2-05-03. Permit applications - Fees.

Repealed effective September 1, 1984. 69-05.2-05-04. Permit applications - Verification.

Permit and revision applications must be verified by the applicant or an authorized representative of the applicant.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-13, 38-14.1-14 69-05.2-05-05. Permit applications - Reapplication for permit under approved state program.

Repealed effective May 1, 1990. 69-05.2-05-06. Permit applications - Coordination with requirements under other laws.

The commission will, to avoid duplication, coordinate permit review and issuance with:

1.Any other applicable state permit process including permits required by the:

a.Air Pollution Control Act (North Dakota Century Code chapter 23-25).

b.Solid Waste Management and Land Protection Act (North Dakota Century Code chapter 23-29).

c.Control, prevention, and abatement of pollution of surface waters (North Dakota Century Code chapter 61-28).

d.State engineer, state water commission, and water resource districts (North Dakota Century Code chapters 61-01, 61-02, 61-03, 61-04, 61-15, 61-16.1, 61-16.2, 61-31, and 61-32).

2.The appropriate state and federal agencies who administer other applicable natural resource and environmental protection acts.

History: Effective August 1, 1980; amended effective May 1, 1990; May 1, 1992.

Law Implemented: NDCC 38-14.1-03, 38-14.1-42 69-05.2-05-07. Permit applications - Permit area determination - Porcelanite, sand, and gravel borrow pits.

In determining whether porcelanite (scoria), sand, and gravel borrow pits may be excluded from the permit area where the pits are located near mining activities, the commission may consider the following factors, including:

1.Proximity of the pits to the mining and reclamation operations.

2.The acreage [hectarage] affected by the pits and the impact of pits adjacent to the mining operation upon land, air, or water resources.

3.Degree of dependency of the mining operation on the pits.

4.Degree of control over the operation of the pits by the permittee or operator.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-14 69-05.2-05-08. Permit applications - Permit term.

1.A permit will be issued for a fixed term not to exceed five years except as provided in subsection 3. The permit area shall be no larger than a logical pit sequence and include lands used for activities incidental to coal extraction. Coal removal boundaries cannot go beyond those approved for the permit term without obtaining a revision under section 69-05.2-11-02.

2.Permitted acreage where surface coal mining operations are not complete shall be successively renewed under section 69-05.2-11-03 until final bond release.

3.A term for a fixed period greater than five years may be approved if:

a.The applicant needs a specified longer term and a larger permit area to make the showing necessary to obtain financing for equipment and opening the operation, and this need is verified, in writing, by the applicant's proposed financing source; and

b.The application is accurate and complete for the specified longer term.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; January 1, 1993;

April 1, 2013.

Law Implemented: NDCC 38-14.1-12 69-05.2-05-09. Permit applications - Consolidation for multiple permit operations.

The commission may allow certain information and plans required by this article and North Dakota Century Code chapter 38-14.1 to be consolidated by the permittee into a single document for each surface coal mining and reclamation operation subject to the following requirements:

1.The consolidation of information and plans will be limited to sections of the permit application where the same information and plans cover more than one permit area. Each consolidated document is subject to the approval procedures established for permit revisions.

2.Each mining permit must be revised to describe the specific information and plans to be consolidated into a single document covering the entire surface coal mining and reclamation operation under permit.

3.Each consolidated document is subject to review by the commission at the time of midterm review or renewal for each permit covered by the consolidated document, in accordance with

section 69-05.2-11-01.

4.A permittee may propose modifications to a consolidated document by filing a permit revision application relating to the most recently issued permit covered by the consolidated document.

History: Effective July 1, 1995; amended effective May 1, 1999.

Law Implemented: NDCC 38-14.1-13

Chapter 69-05.2-06 Permit Applications - Requirements for Legal, Financial, Compliance, and Related Information

N.D. Admin. Code 69-05.2-06 Permit Applications - Requirements for Legal, Financial, Compliance, and Related Information

CHAPTER 69-05.2-06

PERMIT APPLICATIONS - REQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE,

AND RELATED INFORMATION

Section 69-05.2-06-01Permit Applications - Identification of Interests 69-05.2-06-02Permit Applications - Compliance Information 69-05.2-06-03Permit Applications - Right of Entry and Operation Information 69-05.2-06-04Permit Applications - Identification of Other Licenses and Permits 69-05.2-06-05Permit Applications - Relationship to Areas Designated Unsuitable for Mining 69-05.2-06-01. Permit applications - Identification of interests.

1.In addition to satisfying the applicable requirements of subsection 1 of North Dakota Century Code section 38-14.1-14, each application must contain:

a.The names and addresses of the owner of record of surface and coal subsurface rights contiguous to the permit area extending one-fourth mile [402.33 meters] from the permit boundary.

b.The mine name and the mine safety and health administration identification number.

c.A statement of all lands, interests in lands, options, or pending bids on interests held or made by the applicant for lands contiguous to the permit area extending one-fourth mile [402.33 meters] from the permit boundary.

d.The name, address, telephone number, and, as applicable, social security number and employer identification number of the:

(1)Applicant.

(2)Applicant's resident agent.

(3)Person who will pay the abandoned mine land reclamation fee.

e.For each person who owns or controls the applicant under the definition of "owned or controlled" or "owns or controls", as applicable:

(1)The person's name, address, social security number, and employer identification number.

(2)The person's ownership or control relationship to the applicant, including percentage of ownership and location in the organizational structure.

(3)The title of the person's position, date position was assumed, and, when submitted under subdivision e of subsection 3 of section 69-05.2-10-05, the date of departure from the position.

(4)Each additional name and identifying number, including employer identification number, federal or state permit number, and mine safety and health administration number with date of issuance, under which the person owns or controls, or previously owned or controlled, a surface coal mining and reclamation operation in the United States within the five years preceding the date of the application.

(5)The application number or other identifier of, and the regulatory authority for, any other pending surface coal mining operation permit application filed by the person in any state in the United States.

f.For any surface coal mining operation owned or controlled by either the applicant or by any person who owns or controls the applicant under the definition of "owned or controlled" and "owns or controls", the operation's:

(1)Name, address, identifying numbers, including employer identification number, federal or state permit number and mine safety and health administration number, the date of issuance of the mine safety and health administration number, and the regulatory authority.

(2)Ownership or control relationship to the applicant, including percentage of ownership and location in the organizational structure.

2.With regard to the business entity information required by subdivisions d through f of subsection 1:

a.If this information is already in the applicant violator system maintained by the office of surface mining reclamation and enforcement, the applicant:

(1)May certify to the commission by affirming, under oath and in writing, that the relevant information in the applicant violator system is accurate, complete, and up to date; or (2)If the part of the information in the applicant violator system is missing or incorrect, submit the necessary information or corrections and affirm, under oath and in writing, that the information submitted is accurate and complete.

b.The applicant shall affirm, under oath and in writing, that all business entity information provided in an application is accurate and complete.

c.The commission may establish a central file to house the applicant's business entity identity information, rather than place duplicate information in each permit file. If a central file is established for an applicant, the information in that file will be considered a component of each permit it is connected to. The commission will make information in a central file available to the public and the applicant shall file a copy with the county auditor in the county where mining is proposed.

d.After notification that the application is deemed ready for approval but before the permit is issued, the applicant shall, as applicable, update, correct, or indicate that no change has occurred in the information previously submitted under subdivisions d through f of subsection 1 or certify that information in the applicant violator system is still accurate, complete, and up to date.

3.The applicant shall submit information required by this section in any format prescribed by the office of surface mining reclamation and enforcement.

4.The submission of a social security number in subdivisions d and e of subsection 1 is voluntary.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990; May 1, 1992; July 1, 1995; April 1, 2013. 69-05.2-06-02. Permit applications - Compliance information.

In addition to satisfying the applicable requirements of subsection 1 of North Dakota Century Code

section 38-14.1-14, each application must contain:

1.A statement of any current or previous coal mining permits in any state held during the five years prior to application and by any person identified in paragraph 3 of subdivision e of subsection 1 of North Dakota Century Code section 38-14.1-14, and of any pending application to conduct operations in any state. The information must be listed by permit and pending application number for each.

2.The explanation required by subdivision h of subsection 1 of North Dakota Century Code

section 38-14.1-14 including:

a.Identification number and permit issue date or date and amount of bond or similar security.

b.Identification of the authority that suspended or revoked a permit or forfeited a bond and the reasons for that action.

c.The current status of the permit, bond, or security.

d.The date, location, type, and current status of any administrative or judicial proceedings initiated concerning the suspension, revocation, or forfeiture.

3.A list of all violation notices as required by subdivision g of subsection 1 of North Dakota Century Code section 38-14.1-14 including violations received by any person who owns or controls the applicant.

4.A list of all unabated cessation orders and unabated air and water quality violation notices received prior to the date of the application by any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant.

5.The lists required by subsections 3 and 4 must include, as applicable:

a.Any identifying numbers for the operation, including the federal or state permit number and mine safety and health administration number, the date of issuance of the violation notice and mine safety and health administration number, the name of the person to whom the violation was issued, and the identity of the issuing authority, department, or agency.

b.A brief description of the violation alleged.

c.The date, location, and type of any administrative or judicial proceedings initiated concerning the violation, including proceedings initiated by the applicant or by any person who owns or controls the applicant, to obtain administrative or judicial review.

d.The current status of the proceedings and violation notice.

e.Any actions taken by the applicant or by any person who owns or controls the applicant to abate the violation.

f.Any final resolution of each notice.

6.With regard to the violation information required by subsections 3 through 5:

a.If this information is already in the applicant violator system maintained by the office of surface mining reclamation and enforcement, the applicant:

(1)May certify to the commission by affirming, under oath and in writing, that the relevant information in the applicant violator system is accurate, complete, and up to date; or (2)If the part of the information in the applicant violator system is missing or incorrect, submit the necessary information or corrections and affirm, under oath and in writing, that the information you submit is accurate and complete.

b.The applicant shall affirm, under oath and in writing, that all violation information provided in an application is accurate and complete.

c.The commission may establish a central file to house the applicant's identity information, rather than place duplicate information in each permit file. If a central file is established for an applicant, the information in that file will be considered a component of each permit it is connected to. The commission will make information in a central file available to the public and the applicant shall file a copy with the county auditor in the county where mining is proposed.

d.After notification that the application is deemed ready for approval but before the permit is issued, the applicant shall, as applicable, update, correct, or indicate that no change has occurred in the information previously submitted under subsections 3 through 5 or certify that information in the applicant violator system is still accurate, complete, and up to date.

History: Effective August 1, 1980; amended effective June 1, 1983; June 1, 1986; May 1, 1990; May 1, 1992; June 1, 1994; July 1, 1995; April 1, 2013. 69-05.2-06-03. Permit applications - Right of entry and operation information.

1.In addition to satisfying subdivision k of subsection 1 of North Dakota Century Code section 38-14.1-14, the application must also contain a narrative and supporting certified copies of the appropriate documents which demonstrate that the applicant has complied with North Dakota Century Code section 38-18-06.

2.Following completion of coal removal operations on the lands covered by a coal lease, the copy of the lease may be deleted from an approved permit if:

a.The lease is no longer needed to show the surface right of entry for carrying out reclamation operations; or

b.The lease has expired or has been terminated.

If a coal lease is no longer provided for surface right of entry, other documents granting the permittee surface right of entry must be added to the permit.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; April 1, 2007. 69-05.2-06-04. Permit applications - Identification of other licenses and permits.

Each application must contain a list of all other licenses and permits needed to conduct mining activities and identify each license and permit by:

1.Type.

2.Name and address of issuing authority.

3.Identification numbers of permit or license applications or, if issued, the permit or license identification numbers.

4.If a decision has been made, the date of approval or disapproval by each issuing authority.

History: Effective August 1, 1980; amended effective May 1, 1990. 69-05.2-06-05. Permit applications - Relationship to areas designated unsuitable for mining.

1.Each application must contain a statement of available information on whether the permit area is within an area designated unsuitable for mining under North Dakota Century Code section 38-14.1-05 and chapter 69-05.2-04 or under study for designation in an administrative proceeding.

2.If claiming the exemption in subdivision d of subsection 3 of North Dakota Century Code

section 38-14.1-21, the applicant shall provide information supporting the assertion of substantial legal and financial commitments made before January 4, 1977.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-05, 38-14.1-14, 38-14.1-21

Chapter 69-05.2-07 Permit Applications - Extended Mining Plan - Requirements for Information on Environmental Resources

N.D. Admin. Code 69-05.2-07 Permit Applications - Extended Mining Plan - Requirements for Information on Environmental Resources

CHAPTER 69-05.2-07

PERMIT APPLICATIONS - EXTENDED MINING PLAN - REQUIREMENTS FOR

INFORMATION ON ENVIRONMENTAL RESOURCES

Section 69-05.2-07-01Permit Applications - Extended Mining Plan - General Requirements 69-05.2-07-02Permit Applications - Extended Mining Plan - Amendment 69-05.2-07-03Permit Applications - Extended Mining Plan - General Map Requirements 69-05.2-07-04Permit Applications - Extended Mining Plan - General Requirements for Description of Hydrology [Repealed] 69-05.2-07-05Permit Applications - Extended Mining Plan - Alluvial Valley Floors [Repealed] 69-05.2-07-06Permit Applications - Extended Mining Plan - Soil Resources Information [Repealed] 69-05.2-07-07Permit Applications - Extended Mining Plan - Geologic Description [Repealed] 69-05.2-07-08Permit Applications - Extended Mining Plan - Fish and Wildlife Information [Repealed] 69-05.2-07-01. Permit applications - Extended mining plan - General requirements.

Each application must contain an extended mining plan identifying the lands subject to surface coal mining over the estimated life of the operation. Extended mining plans must be complete, accurate, and updated annually.

Law Implemented: NDCC 38-14.1-15 69-05.2-07-02. Permit applications - Extended mining plan - Amendment.

The permittee shall annually advise the commission by January twenty-fifth of the status of the extended mining plan and submit two copies of any plan amendments or additional data.

Law Implemented: NDCC 38-14.1-15 69-05.2-07-03. Permit applications - Extended mining plan - General map requirements.

The applicant shall provide a 1:24,000 scale topographic map which shows:

1.The scale, date, location, company name, legal subdivision boundaries, an appropriate contour interval, and legend.

2.The extended mining plan boundaries and a legal description, to the nearest quarter section, of the lands within them.

3.The size, sequence, and timing of individual permits over the estimated life of the extended mining plan.

4.The estimated crop and recovery lines.

The information may be shown on one map or on separate maps along with appropriate narratives.

Law Implemented: NDCC 38-14.1-14, 38-14.1-15 69-05.2-07-04. Permit applications - Extended mining plan - General requirements for description of hydrology. 69-05.2-07-05. Permit applications - Extended mining plan - Alluvial valley floors. 69-05.2-07-06. Permit applications - Extended mining plan - Soil resources information. 69-05.2-07-07. Permit applications - Extended mining plan - Geologic description. 69-05.2-07-08. Permit applications - Extended mining plan - Fish and wildlife information.

Chapter 69-05.2-08 Permit Applications - Permit Area - Requirements for Information on Environmental Resources

N.D. Admin. Code 69-05.2-08 Permit Applications - Permit Area - Requirements for Information on Environmental Resources

CHAPTER 69-05.2-08

PERMIT APPLICATIONS - PERMIT AREA - REQUIREMENTS FOR INFORMATION ON

ENVIRONMENTAL RESOURCES

Section 69-05.2-08-01Permit Applications - Permit Area - Environmental Resources Information 69-05.2-08-02Permit Applications - Permit Area - General Map Requirements 69-05.2-08-03Permit Applications - Permit Area - Description of the Cultural and Historic Resources [Repealed] 69-05.2-08-04Permit Applications - Permit Area - Description of Hydrology and Geology - General Requirements 69-05.2-08-05Permit Applications - Permit Area - Geology Description 69-05.2-08-06Permit Applications - Permit Area - Ground Water Information 69-05.2-08-07Permit Applications - Permit Area - Surface Water Information 69-05.2-08-08Permit Applications - Permit Area - Vegetation and Land Use Information 69-05.2-08-09Permit Applications - Permit Area - Prime Farmland - Reconnaissance Investigation 69-05.2-08-10Permit Applications - Permit Area - Soil Resources Information 69-05.2-08-11Permit Applications - Permit Area - Use of Other Suitable Strata 69-05.2-08-12Permit Applications - Permit Area - Topographic Data [Repealed] 69-05.2-08-13Permit Applications - Permit Area - Alluvial Valley Floor Determination 69-05.2-08-14Permit Applications - Permit Area - Alluvial Valley Floor Resources 69-05.2-08-15Permit Applications - Permit Area - Fish and Wildlife Resources 69-05.2-08-01. Permit applications - Permit area - Environmental resources information.

1.Each application must include a description of the premining environmental resources of the permit and adjacent areas that may be affected by mining.

2.When the permit area contains a logical pit sequence where the coal removal area is larger than that needed for the initial five-year term, the applicant shall identify the size, sequence, and timing of mining individual coal removal subareas.

3.Lands in the application must be described by metes and bounds or standard government land survey descriptions, except that government lots must be described only by metes and bounds.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; January 1, 1993. 69-05.2-08-02. Permit applications - Permit area - General map requirements.

1.The application must include a 1:4,800 planimetric mine map, together with as many separate detail maps as necessary, to show:

a.Land boundaries and names of present surface and subsurface owners of record in the permit area and contiguous lands extending one-fourth mile [402.23 meters] from the permit boundary.

b.The scale, date, location, company name, legal subdivision boundaries, and legend.

c.The exact area being considered for permit.

d.The locations and elevations of drill holes used for collecting geologic, ground water, and overburden information.

e.The location and current use of all buildings on and within one-half mile [804.67 meters] of the permit area.

f.The location of surface and subsurface manmade features within, passing through, or passing over the permit area, including major electric transmission lines, pipelines, agricultural drainage tile fields, wells, roads, highways, and railroads.

g.Each public road in or within one hundred feet [30.48 meters] of the permit area.

h.Each public or private cemetery or native American burial ground in or within one hundred feet [30.48 meters] of the permit area.

i.Elevations and locations of monitoring stations used to gather environmental resource data for water quality and quantity, fish and wildlife, and air quality.

j.Location and extent of known underground mines, including openings to the surface within the permit and adjacent areas.

k.Location and extent of existing or previously surface-mined areas within the permit and adjacent area.

l.Location and dimensions of existing areas of spoil, coal and noncoal waste disposal, dams, embankments, other impoundments, and water treatment and air pollution control facilities within the permit area.

m.Location, and depth if available, of gas and oil wells within the permit area.

n.The boundaries of any public park within or adjacent to the permit area.

2.The application must contain a 1:24,000 planimetric map showing:

a.The boundaries of the extended mining plan area.

b.The area being considered for permit.

c.The boundaries of previously permitted areas.

3.The application must include:

a.Five-foot [1.52-meter] contour interval topographic maps of the permit area.

b.An area slope map showing three percent intervals, unless otherwise approved by the commission.

History: Effective August 1, 1980; amended effective May 1, 1990; January 1, 1993. 69-05.2-08-03. Permit applications - Permit area - Description of the cultural and historic resources.

Repealed effective June 1, 1986. 69-05.2-08-04. Permit applications - Permit area - Description of hydrology and geology - General requirements.

1.Each application must describe the geology, hydrology, and water quality and quantity of the permit and adjacent area. The description must include information on the characteristics of all surface and ground waters within the permit and adjacent areas, and any water which will flow into or receive discharges from these areas. The permit will not be approved until this information is in the application.

2.All water quality sampling and analyses must be conducted according to the most recent edition of Standard Methods for the Examination of Water and Wastewater or those in 40 CFR parts 136 and 434 or other methods approved by the commission and the office of surface mining reclamation and enforcement.

3.Enough detailed geologic information must be included to determine:

a.The probable hydrologic consequences (PHC) of the operation on the quality and quantity of surface and ground water in the permit and adjacent areas, including the extent to which surface and ground water monitoring is necessary;

b.All potentially toxic-forming strata down through the lowest coal seam to be mined; and

c.Whether reclamation can be accomplished and whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

4.The applicant shall determine the probable hydrologic consequences of the operation on the quality and quantity of surface and ground water under seasonal flow conditions for the permit and adjacent areas. The probable hydrologic consequences determination must be based on baseline hydrologic, geologic, and other information collected for the application and, if appropriate, data statistically representative of the site. Include findings on:

a.Whether adverse impacts occur to the hydrologic balance.

b.Whether toxic-forming materials are present that could contaminate surface and ground water supplies.

c.Whether the operation may contaminate, diminish, or interrupt an underground or surface water source within the permit or adjacent areas used for domestic, agricultural, industrial, or other legitimate purpose.

d.What impact the operation will have on:

(1)Sediment yield from the disturbed area.

(2)Acidity, total suspended and dissolved solids, and other important water quality parameters of local impact.

(3)Flooding or streamflow alteration.

(4)Ground water and surface water availability and other characteristics as required by the commission.

5.The applicant shall provide supplemental information to evaluate the hydrologic consequences based on drilling, aquifer tests, geohydrologic analysis of the water-bearing strata, flood flows, or analysis of other water quality or quantity characteristics if:

a.Toxic-forming material is present; or

b.The probable hydrologic consequences determination indicates adverse impacts on or off the permit area may occur to the hydrologic balance.

6.The applicant shall provide information on the availability and suitability of alternate water sources for existing premining and approved postmining land uses if the probable hydrologic consequences determination shows the mining operation may contaminate, diminish, or interrupt a water source used for domestic or other legitimate purpose in the permit or adjacent areas.

7.Modeling techniques may be used if they furnish the required information.

Law Implemented: NDCC 38-14.1-14, 38-14.1-15 69-05.2-08-05. Permit applications - Permit area - Geology description.

1.The description must include a general statement of the geology within the permit area down through the deeper of either the stratum immediately below the deepest coal seam to be mined or any lower aquifer which may be adversely affected by mining.

2.Test borings or core samples from the permit area must be collected and analyzed down through the deeper of either the stratum immediately below the lowest coal seam to be mined or any lower aquifer which may be adversely affected by mining. The minimum density is one drill hole per forty acres [16.19 hectares] or a comparable spacing, or as specified by the commission. Overburden samples must be taken at five-foot [1.52-meter] intervals and taken dry whenever possible. Laboratory analyses must be made by the methods in United States department of agriculture handbook 525, Laboratory Methods Recommended for Chemical Analyses of Mined Land Spoils and Overburden in Western United States, by Sandoval and Power, or United States department of agriculture handbook 60, Diagnosis and Improvement of Saline and Alkali Soils, by the United States salinity laboratory staff, both available from the United States government printing office, Washington, D. C. The following information must be provided:

a.Location of subsurface water encountered.

b.Drill hole logs with gamma ray and density logs included as verification showing the lithologic characteristics and thickness of each stratum and coal seam.

c.Physical and chemical analyses of each overburden sample taken at five-foot [1.52-meter] intervals to identify horizons containing potential toxic-forming materials.

Physical and chemical analyses of strata below the lowest coal seam to be mined must include one sample from each stratum. The analyses must include:

(1)pH.

(2)Sodium adsorption ratio (include calcium, magnesium, and sodium cation concentrations).

(3)Electrical conductivity of the saturation extract.

(4)Texture (by pipette or hydrometer method). Include percentage of sand, silt, and clay along with a general description of the physical properties of each stratum within the overburden.

(5)Saturation percentage if the sodium adsorption ratio is greater than twelve and less than twenty.

d.Coal seam analyses including sodium, ash, British thermal unit, and sulfur content.

e.Cross sections sufficient to show the major subsurface variations within the permit area down through the deeper of either the stratum immediately below the lowest coal seam to be mined or any lower aquifer which may be adversely affected by mining. The horizontal scale must be 1:4,800 and the vertical scale one inch [2.54 centimeters] equals twenty feet [6.10 meters]. To assess pit suitability for disposal of refuse, ash, and other residue from coal utilization processes, the information presented in this subsection must extend to a depth determined by the commission or to the base of the next confining clay stratum beneath the lowest coal seam to be mined.

f.A thickness (isopach) map of the overburden to the top of the deepest seam to be mined.

The contour interval must be ten feet [3.05 meters] and the horizontal scale 1:4,800.

g.All coal crop lines and the strike and dip of the coal to be mined.

3.If required by the commission, the applicant shall collect and analyze test borings or core samplings to greater depths within or outside the permit area if needed for evaluating the impact of mining on the hydrologic balance.

History: Effective August 1, 1980; amended effective January 1, 1987; May 1, 1990; May 1, 1992. 69-05.2-08-06. Permit applications - Permit area - Ground water information.

1.The applicant shall analyze the ground water hydrology and ground water resources of the potentially affected area. The application must contain a description of the ground water hydrology for the permit and adjacent areas including:

a.A general account of the ground water hydrology (the water resources of the area).

b.Known uses of the water in the aquifers and water table and location of all water wells within the permit and adjacent areas.

c.Sufficient information and narratives to adequately describe the recharge, storage, and discharge characteristics of aquifers and the quality and quantity of ground water according to the parameters and in the detail required by the commission. The narrative must discuss the aquifers and hydrologic functions that are addressed in the ground water monitoring plan required by section 69-05.2-09-12 in order to comply with sections 69-05.2-16-13 through 69-05.2-16-15.

d.Contour maps or maps showing the water table or piezometric surface in each aquifer (including water-bearing coal seams) down to and including the lowest water-bearing coal seam to be mined and any lower aquifer which may be adversely affected by mining.

The applicant shall prepare 1:24,000 scale maps covering the permit and adjacent areas, using at least one data point (a piezometer nest) per four square miles [6.44 square kilometers], unless the commission requires a greater density. Data points must be shown on the map to the nearest ten acres [4.05 hectares]. Accompanying data should include lithologic and geophysical (gamma ray and density) logs of the piezometer holes, piezometer construction details, and water level and land surface elevations to the accuracy necessary for valid analysis of the ground water hydrology of the permit and adjacent areas.

e.Results of water samples collected from each data point, if possible, analyzed for:

(1)Total dissolved solids in milligrams per liter.

(2)Hardness in milligrams per liter.

(3)Sodium in milligrams per liter.

(4)Iron, bicarbonate, nitrate, sulfate, and chloride in milligrams per liter.

(5)pH in standard units.

(6)Sodium adsorption ratio (include calcium, magnesium, and sodium cation concentrations).

(7)Electrical conductivity in micro mhos per centimeter.

(8)Additional parameters required by the commission on a site-specific basis.

2.If necessary, the applicant shall provide additional ground water information required by subsections 5 and 6 of section 69-05.2-08-04.

3.The applicant shall meet the alluvial valley floor ground water information and data requirements if the permit area contains or is adjacent to an identified alluvial valley floor. 69-05.2-08-07. Permit applications - Permit area - Surface water information.

1.The applicant shall provide a map for the permit and adjacent areas showing:

a.Names and locations of watersheds receiving mine water discharges.

b.Ephemeral, intermittent, and perennial streams.

c.Lakes, ponds, wetlands, springs, drains, and water discharges into surface water bodies.

d.Water supply intakes for current surface water users.

2.The applicant shall describe surface drainage systems in sufficient detail to identify seasonal water quality and quantity variations in the permit and adjacent areas.

3.Surface water information must include:

a.Minimum, maximum, and average discharge conditions which identify critical low flow and peak discharge stream rates sufficient to identify seasonal variations.

b.Water quality data to identify the characteristics of surface waters related to the permit and adjacent areas, sufficient to identify seasonal variations. The data must include:

(1)Total dissolved solids in milligrams per liter.

(2)Total suspended solids in milligrams per liter.

(3)pH in standard units.

(4)Total iron in milligrams per liter.

(5)Additional parameters the commission may require on a site-specific basis.

c.A complete description of the monitoring procedures used including:

(1)Site locations.

(2)Monitoring frequency for each site.

(3)Techniques and equipment.

4.If necessary, the applicant shall provide additional surface water information required by subsections 5 and 6 of section 69-05.2-08-04.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990. 69-05.2-08-08. Permit applications - Permit area - Vegetation and land use information.

1.The application must contain the following premining vegetation information:

a.A map or aerial photograph at a scale of 1:4,800 that delineates the existing mapping units within each premining land use. The mapping units for different land use categories are:

(1)For cropland, each soil mapping unit.

(2)For tame pastureland, each soil mapping unit.

(3)For native grasslands, each ecological site. The soil mapping unit in each ecological site must also be delineated.

(4)For woodland, each woodland type, i.e., trees, tall shrubs, and low shrubs.

(5)For fish and wildlife habitat, each vegetation type as further specified in subparagraphs a, b, and c.

(a)For woodland, each woodland type, i.e., trees, tall shrubs, and low shrubs;

(b)For wetlands, wetland classes based on ecological differentiation as set forth in Classification of Natural Ponds and Lakes in the Glaciated Prairie Region (United States department of the interior (1971)) or other approved classification system.

(c)For grasslands (native or introduced), each soil mapping unit.

(6)For shelterbelts, the entire planting.

b.For each land use, a comprehensive species list of higher plants and identification of any species of rare, endangered, poisonous, or noxious plants, developed by a thorough reconnaissance of all mapping units.

c.A description of each mapping unit delineated under subdivision a. This description must include:

(1)The acreage [hectarage] of each mapping unit for each surface owner within the permit area.

(2)An assessment of the productivity of cropland, tame pastureland, and native grassland based on published data, historic data, or quantitative data.

(3)Natural resource conservation service similarity index in percent for native grassland.

(4)A detailed description of number and arrangement of trees and shrubs, probable age of trees, height of trees, and characteristics of understory vegetation for woodland and fish and wildlife habitat where woodland is the vegetation type.

(5)A detailed description of community structure, assemblages of plant species, water conditions, and size for fish and wildlife habitat where wetlands are the vegetation type.

(6)A description of number and arrangement of trees and shrubs, length and number of rows, and associated plant species for shelterbelts.

(7)When required for the proposed success standard, a quantitative assessment of applicable vegetation parameters using methods approved by the commission.

d.A detailed narrative describing the nature and variability of the vegetation in each mapping unit and land use category, based on a thorough reconnaissance and qualitative assessment.

2.When the methods selected for subdivision g of subsection 6 of section 69-05.2-09-11 require the use of reference areas:

a.The number of reference areas proposed must be sufficient to adequately represent the permit area.

b.The location, approximate size, and boundaries of all proposed reference areas must be located on a map of sufficient scale to accurately show the field location of each. The boundaries of the mapping unit in which the reference area is located must also be delineated.

c.The permittee shall demonstrate that the proposed reference areas adequately characterize the relevant mapping units which they propose to represent. This demonstration must be done according to methods approved by the commission.

3.The application must contain, in addition to materials satisfying subdivision a of subsection 2 of North Dakota Century Code section 38-14.1-14:

a.A map and supporting narrative of the uses of the land existing at the time the application is filed. If the premining use of the land was changed within five years before the anticipated date of beginning the proposed operations, the historic use must also be described.

b.A narrative of land capability and productivity, which analyzes the land use description under subdivision a in conjunction with other environmental resources information required under this chapter.

4.The application must contain a narrative description which includes information adequate to predict the potential for reestablishing vegetation on all areas to be disturbed.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; June 1, 1997;

January 1, 2009.

Law Implemented: NDCC 38-14.1-14, 38-14.1-24 69-05.2-08-09. Permit applications - Permit area - Prime farmland - Reconnaissance investigation.

1.All applications must include the results of a reconnaissance investigation of the proposed permit area to indicate whether prime farmland exists. The commission in consultation with the natural resource conservation service will determine the nature and extent of the required reconnaissance investigation.

2.If the reconnaissance investigation establishes that no land within the proposed permit area is prime farmland historically used for cropland, the applicant shall submit a statement that no prime farmland is present. The statement must identify how the conclusion was reached.

3.If the reconnaissance investigation indicates that land within the proposed permit area may be prime farmland historically used for cropland, the applicant shall determine if a cooperative soil survey exists for those lands and whether soil mapping units in the permit area have been designated as prime farmland. If no cooperative soil survey exists, the applicant shall have one made of the lands which the reconnaissance investigation indicates could be prime farmland.

a.If the cooperative soil survey indicates that no prime farmland soil mapping units are present within the permit area, subsection 2 applies.

b.If the cooperative soil survey indicates that prime farmland soil mapping units are present within the permit area, section 69-05.2-09-15 applies, unless the applicant presents other information which demonstrates to the satisfaction of the state conservationist of the natural resource conservation service that no prime farmland mapping units are present.

4.This section does not apply to lands which qualify for the exemption in section 69-05.2-26-06.

However, the application must show that all exemption criteria are met.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992; June 1, 1997. 69-05.2-08-10. Permit applications - Permit area - Soil resources information.

The applicant shall submit a soil survey for the permit area consisting of a map and report prepared by a soil classifier as defined in subsection 28 of North Dakota Century Code section 38-14.1-02.

1.The map must be at a 1:4,800 scale and show:

a.The location and the vertical and lateral (areal) extent of the suitable plant growth material (topsoil) within the permit area that is considered best for topdressing the area to be reclaimed. Suitable plant growth material considered best for topdressing is the noncalcareous surface horizon material that is dark-colored due to organic staining, has an electrical conductivity of less than two millimhos per centimeter (EC x 10 ), a sodium adsorption ratio of less than four (exchangeable sodium percentage of less than five) and an organic matter percentage of one or more.

b.The location and the vertical and lateral (areal) extent of the remaining suitable plant growth material (subsoil) within the permit area, based on electrical conductivity of the saturation extract of less than four millimhos per centimeter (EC x 10 ), and sodium adsorption ratios of less than ten (exchangeable sodium percentage of less than twelve).

c.The location of any prime farmlands identified under section 69-05.2-08-09.

2.The report must contain:

a.The results of any chemical and physical analyses made to determine the properties of the suitable plant growth material. Textural analyses must be included for all samples taken.

b.The description, classification, and interpretation for use of the soils and suitable plant growth material in the permit area.

3.Laboratory analyses must be made by the methods and procedures in United States department of agriculture handbook 60, Diagnosis and Improvement of Saline and Alkali Soils, by the United States salinity laboratory staff, United States government printing office, Washington, D. C., or by other methods and procedures approved in writing by the commission.

4.Prior to a soil classifier beginning work on the required soil survey, a meeting of the soil classifier, the operator, if the operator so desires, and the commission staff will be held for the

purpose of discussing proposed techniques, procedures for sampling and analyses, and the area to be surveyed.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; January 1, 1993. 69-05.2-08-11. Permit applications - Permit area - Use of other suitable strata.

Where the applicant proposes to use other suitable strata as a supplement for suitable plant growth materials or where the commission determines that it is necessary to meet the revegetation requirements, the application must indicate the areal extent of other suitable strata within the proposed permit area and must, on a sampling density determined by the commission in consultation with the applicant, provide results of the analyses, trials, and tests required under subsection 5 of section 69-05.2-15-02.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990. 69-05.2-08-12. Permit applications - Permit area - Topographic data.

Repealed effective January 1, 1993. 69-05.2-08-13. Permit applications - Permit area - Alluvial valley floor determination.

1.Before applying for a permit to conduct operations within a valley holding a stream or in a location where the adjacent area includes any stream, the applicant shall either affirmatively demonstrate, based on available data, the presence of an alluvial valley floor, or submit the results of a field investigation of the permit and adjacent areas. The investigations must include sufficiently detailed geologic, hydrologic, land use, soils, and vegetation studies on areas required to be investigated by the commission, after consultation with the applicant, to enable the commission to make an evaluation regarding the existence of the probable alluvial valley floor in the permit or adjacent area and to determine which areas, if any, require more detailed study in order to make a final determination regarding the existence of an alluvial valley floor. Studies performed during the investigation by the applicant or subsequent studies required of the applicant must include an appropriate combination, adapted to site-specific conditions, of:

a.Mapping of the probable alluvial valley floor including geologic maps of unconsolidated deposits, delineating the streamlaid deposits, maps of streams, delineation of surface watersheds and directions of shallow ground water flows through and into the unconsolidated deposits, topography showing local and regional terrace levels, and topography of terraces, floodplains, and channels showing surface drainage patterns.

b.Mapping of all lands included in the area used for agricultural activities, showing the different types of agricultural lands and accompanied by measurements of vegetation productivity and type.

c.Topographic maps of all lands that are or were historically flood-irrigated, showing the location of each diversion structure, ditch, dam, and related reservoir.

d.Documentation that areas identified in this section are, or are not, subirrigated, based on ground water monitoring data, representative water quality, soil moisture measurements, and measurements of rooting depth, soil mottling, and water requirements of vegetation.

e.Documentation, based on representative sampling, that areas identified under this subdivision are, or are not, flood irrigable, based on streamflow, water quality, water yield, soils measurements, and topographic characteristics.

f.Analysis of a series of aerial photographs, including color infrared imagery capable of showing any late summer and fall differences between upland and valley floor vegetative growth and of a scale adequate for reconnaissance identification of areas that may be alluvial valley floors.

2.Based on the investigations conducted under subsection 1, the commission will determine the extent of any alluvial valley floors within the study area and whether any stream in the study area may be excluded from further consideration. The commission will determine that an alluvial valley floor exists if:

a.Unconsolidated streamlaid deposits holding streams are present; and

b.There is sufficient water to support agricultural activities as shown by:

(1)The existence of flood irrigation in the area or its historical use;

(2)The capability to be flood-irrigated, based on streamflow water yield, soils, water quality, and topography; or (3)Subirrigation of the lands from the ground water system of the valley floor.

Law Implemented: NDCC 38-14.1-21 69-05.2-08-14. Permit applications - Permit area - Alluvial valley floor resources.

1.If land within the permit or adjacent area is identified as an alluvial valley floor and mining may affect it or waters that supply alluvial valley floors, the applicant shall submit a complete description of the alluvial valley floor resources and characteristics that allow the commission to determine:

a.The characteristics necessary to preserve essential hydrologic functions during and after mining.

b.The significance of the area to agricultural activities.

c.Whether the operation will cause, or presents an unacceptable risk of causing, material damage to the quantity or quality of surface or ground waters that supply the alluvial valley floor.

d.The effectiveness of proposed reclamation under North Dakota Century Code chapter 38-14.1 and this article.

e.Specific environmental monitoring required to measure compliance with chapter 69-05.2-25 during and after mining and reclamation operations.

2.The alluvial valley floor baseline data required to make the determinations listed in subsection 1 must include:

a.Geologic data, including structure and surficial maps, and cross sections.

b.Soils and vegetation data, including a detailed soil survey and chemical and physical analyses, a vegetation map and narrative descriptions of quantitative and qualitative surveys, and land use data, including an evaluation of crop yields.

c.Surveys and data for areas designated as alluvial valley floors because of their flood irrigation characteristics must also include streamflow, runoff, sediment yield, and water quality analyses describing seasonal variations, field geomorphic surveys, and other geomorphic studies.

d.Surveys and data for areas designated as alluvial valley floors because of their subirrigation characteristics, must also include geohydrologic data including observation well establishment for water level measurements, ground water contour maps, testing to determine aquifer characteristics that affect waters supplying the alluvial valley floors, well and spring inventories, and water quality analyses describing seasonal variations, and of the same overburden parameters specified in section 69-05.2-08-05 to determine the effect of the operations on water quality and quantity.

e.Plans showing how the operation will avoid, during mining and reclamation, interruption, discontinuance, or preclusion of farming on the alluvial valley floors unless the premining land use has been undeveloped rangeland which is not significant to farming and will not materially damage the quantity or quality of water in surface and ground water systems that supply these alluvial valley floors.

f.Maps showing farms that could be affected by the mining and, if any farm encompasses all or part of an alluvial valley floor, statements of the type and quantity of agricultural activity on the alluvial valley floor and its relationship to the farm's total agricultural activity including an economic analysis.

3.The surveys should identify those geologic, hydrologic, and biologic characteristics of the alluvial valley floor necessary to support essential hydrologic functions. Characteristics which must be evaluated in a complete application include:

a.Characteristics supporting the function of collecting water which include:

(1)The amount and rate of runoff and a water balance analysis, with respect to rainfall, evapotranspiration, infiltration, and ground water recharge.

(2)The relief, slope, and density of the network of drainage channels.

(3)The infiltration, permeability, porosity, and transmissivity of unconsolidated deposits of the valley floor that either constitute the aquifer associated with the stream or lie between the aquifer and the stream.

(4)Other factors that affect the interchange of water between surface streams and ground water systems, including the depth to ground water, the direction of ground water flow, the extent to which the stream and associated alluvial ground water aquifers provide recharge to, or are recharged by bedrock aquifers.

b.Characteristics supporting the function of storing water which include:

(1)Surface roughness, slope, and vegetation of the channel, floodplain, and low terraces that retard flow.

(2)Porosity, permeability, water-holding capacity, saturated thickness, and volume of aquifers associated with streams, including alluvial aquifers, perched aquifers, and other water-bearing zones found beneath valley floors.

(3)Moisture held in soils within the alluvial valley floor, and the physical and chemical properties of the subsoil that provide for sustained vegetation growth or cover during extended periods of low precipitation.

c.Characteristics supporting the function of regulating the flow of water which include:

(1)The geometry and physical character of the valley, expressed in terms of the longitudinal profile and slope of the valley and the channel, the sinuosity of the channel, the cross section, slopes, and proportions of the channels, floodplains, and low terraces, the nature and stability of the streambanks, and the vegetation established in the channels and along the streambanks and floodplains.

(2)The nature of surface flows as shown by the frequency and duration of flows of representative magnitude including low flows and floods.

(3)The nature of interchange of water between streams, their associated alluvial aquifers and any bedrock aquifers as shown by the rate and amount supplied by the stream to associated alluvial and bedrock aquifers (i.e., recharge) and by the rates and amounts supplied by aquifers to the stream (i.e., baseflow).

d.Characteristics which make water available and which include the presence of land forms including floodplains and terraces suitable for agricultural activities.

Law Implemented: NDCC 38-14.1-21 69-05.2-08-15. Permit applications - Permit area - Fish and wildlife resources.

Each application must include fish and wildlife resource information for the permit and adjacent area.

1.The applicant shall submit for commission approval a study plan for acquiring fish and wildlife information which must include the scope of work, level of detail, and timetable for completing fish and wildlife inventories. The commission, in consultation with the state and federal agencies responsible for fish and wildlife, will ensure that the study plan is sufficient to design the protection and enhancement plan required in section 69-05.2-09-17.

2.The study report must be included in the application and fish and wildlife habitats must be delineated on 1:4,800 scale aerial photographs.

3.Site-specific resource information necessary to address the respective species or habitats is required when the permit or adjacent area is likely to include:

a.Listed or proposed endangered or threatened plant or animal species or their critical habitats listed by the secretary of the United States department of the interior under the Endangered Species Act of 1973, as amended [16 U.S.C. 1531 et seq.];

b.Habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, or reproduction and wintering areas; or

c.Other species or habitats identified through agency consultation as requiring special protection under state or federal law.

4.Within ten days of the request, the commission will provide the resource information required under subsection 1 to the United States department of the interior, fish and wildlife service regional or field office for their review.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992.

Law Implemented: NDCC 38-14.1-14, 38-14.1-24

Chapter 69-05.2-09 Permit Applications - Permit Area - Requirements for Operation and Reclamation Plans

N.D. Admin. Code 69-05.2-09 Permit Applications - Permit Area - Requirements for Operation and Reclamation Plans

CHAPTER 69-05.2-09

PERMIT APPLICATIONS - PERMIT AREA - REQUIREMENTS FOR OPERATION AND

RECLAMATION PLANS

Section 69-05.2-09-01Permit Applications - Operation Plans - General Requirements 69-05.2-09-02Permit Applications - Operation Plans - Maps and Plans 69-05.2-09-03Permit Applications - Operation Plans - Existing Structures 69-05.2-09-04Permit Applications - Operation Plans - Blasting 69-05.2-09-05Permit Applications - Operation Plans - Air Pollution Control 69-05.2-09-06Permit Applications - Operation Plans - Transportation Facilities 69-05.2-09-07Permit Applications - Operation Plans - Relocation or Use of Public Roads 69-05.2-09-08Permit Applications - Operation Plans - Protection of Public Parks 69-05.2-09-09Permit Applications - Operation Plans - Surface Water Management - Ponds, Impoundments, Banks, Dams, Embankments, and Diversions 69-05.2-09-10Permit Applications - Operation Plans - Surface Mining Near Underground Mining 69-05.2-09-11Permit Applications - Reclamation Plans - General Requirements 69-05.2-09-12Permit Applications - Operation and Reclamation Plans - Surface and Ground Water Monitoring for Protection of the Hydrologic Balance 69-05.2-09-13Permit Applications - Reclamation Plans - Postmining Land Use 69-05.2-09-14Permit Applications - Reclamation Plans - Disposal of Initial Pit Spoil and Other Excess Spoil 69-05.2-09-15Permit Applications - Operation and Reclamation Plans - Prime Farmlands 69-05.2-09-16Permit Applications - Operation and Reclamation Plans - Alluvial Valley Floors 69-05.2-09-17Permit Applications - Operation and Reclamation Plans - Fish and Wildlife Resources Protection and Enhancement Plan 69-05.2-09-18Permit Applications - Operations and Reclamation Plans - Auger Mining 69-05.2-09-19Permit Applications - Operations and Reclamation Plans - Coal Preparation Plants not Located Within the Permit Area of a Mine 69-05.2-09-01. Permit applications - Operation plans - General requirements.

Each application must contain a detailed description of the proposed mining operations, including:

1.A narrative of mining procedures and engineering techniques, anticipated annual and total coal production, and major equipment.

2.A plan stating the anticipated or actual starting and termination date of each phase of mining activities and the amount of land to be affected for each phase over the life of the permit.

3.A narrative for each operations plan explaining the plan in detail and the construction, modification, use, and maintenance of each mine facility, water and air pollution control facilities or structures, transportation and coal handling facilities, and other structures required for implementing the plans.

4.A plan for each support facility to be constructed, used, or maintained within the permit area, including maps, appropriate cross sections, design drawings, and specifications of each facility sufficient to demonstrate compliance with section 69-05.2-24-08 or 69-05.2-24-09 as applicable.

5.If coal removal areas are proposed within five hundred feet [152.40 meters] of any farm building, the applicant must provide documentation showing compliance or plans to comply with North Dakota Century Code section 38-18-07.

History: Effective August 1, 1980; amended effective May 1, 1990; May 1, 1992; June 1, 1994;

March 1, 2004.

Law Implemented: NDCC 38-14.1-14, 38-18-07 69-05.2-09-02. Permit applications - Operation plans - Maps and plans.

Each application must contain an appropriate combination of 1:4,800 scale topographic maps, planimetric maps, and plans of the proposed permit and adjacent areas showing:

1.Scale, date, permit boundaries, company name, legal subdivision boundaries, and legend.

2.Lands to be affected throughout the operation and any change in a facility or feature caused by the operations, if the existing facility or feature was shown under chapter 69-05.2-08.

3.The boundaries of areas to be affected during the permit term according to the sequence of mining and reclamation operations and a description of size and timing of operations for each coal removal subarea.

4.Pit layout and proposed sequence of mining operations, crop line, spoil placement areas, final graded spoil line, highwall areas to be backsloped, and areas for stockpiling suitable plant growth material or other suitable strata.

5.Location of proposed surface water management structures and identification of permanent water impoundments or stream channel alignments.

6.Location of coal processing waste dams and embankments under section 69-05.2-09-09, and fill areas for the disposal of initial cut and other excess spoil under section 69-05.2-09-14 and North Dakota Century Code section 38-14.1-24.

7.Buildings, utility corridors, proposed and existing haul roads, mine railways, and other support facilities.

8.Each coal storage, cleaning and loading area, and each coal waste and noncoal waste storage area. For noncoal wastes that will be disposed of in the proposed permit area, the applicant must provide a description of any wastes listed under subdivision i of subsection 2 of

section 33-20-02.1-01 and any other wastes requiring a permit from the department of environmental quality. The location of any such disposal areas must be shown on a map of the permit area.

9.Each explosive storage and handling facility.

10.Each air pollution collection and control facility.

11.Each habitat area to be used to protect and enhance fish and wildlife and related environmental values.

12.Each source of waste and each waste disposal facility relating to coal processing or pollution control.

13.Each bond area, scheduled according to the proposed sequence of operations. Include the bond or guarantee amount for each area.

14.If an applicant proposes to remine or otherwise disturb lands that were affected by coal mining activities prior to January 1, 1970:

a.Detailed maps and other available information that clearly depicts the boundaries of the site that was previously affected by mining activities before January 1, 1970. This includes the identification of any sinkholes and other features that are the result of any past underground coal mining activities.

b.The applicant must identify and describe potential environmental and safety problems related to prior mining activity at the site and those that could be reasonably anticipated to occur. This identification must be based on a due diligence investigation which includes visual observations at the site, a record review of past mining at the site, and any necessary environmental sampling tailored to the current condition of the site.

c.With regard to potential environmental and safety problems referred to in subdivision b, a description of the mitigative measures that will be taken to ensure that the applicable reclamation requirements can be met.

Maps and plans required under subsections 5, 6, and 12 must be prepared by, or under the direction of, and certified by a qualified registered professional engineer, a qualified registered land surveyor, or qualified professional geologist with assistance from experts in related fields. However, maps, plans, and cross sections submitted according to section 69-05.2-09-09 may only be prepared by, or under the direction of, and certified by a qualified registered professional engineer or qualified registered land surveyor.

History: Effective August 1, 1980; amended effective June 1, 1983; June 1, 1986; May 1, 1990;

June 1, 1997; April 1, 2011. 69-05.2-09-03. Permit applications - Operation plans - Existing structures.

1.Each application must contain a description of each existing structure in the proposed permit or adjacent permit areas used to support the surface coal mining and reclamation operation.

The description must include:

a.Location.

b.Current condition.

c.Approximate beginning and ending construction dates.

d.A showing, including relevant monitoring data or other evidence, whether the structure meets the performance standards and design requirements of this article and North Dakota Century Code section 38-14.1-24.

2.The applicant shall modify or reconstruct a nonconforming structure to meet the design standards of this article after approval of the compliance plan required in subsection 3.

3.Each application must contain a compliance plan for each structure to be modified or reconstructed and include:

a.Specifications to meet the design and performance standards of this article and North Dakota Century Code section 38-14.1-24.

b.A construction schedule showing dates for beginning and completing interim steps and final reconstruction.

c.Provisions for monitoring the structure during and after modification or reconstruction to ensure that the performance standards are met.

d.A showing that the risk to the environment or to public health or safety is not significant during modification or reconstruction.

4.A structure which meets the performance standards of this article and North Dakota Century Code section 38-14.1-24 but does not meet the design requirements of this article may be exempted from those design requirements. The commission may grant this exemption as part of the application process after obtaining the information required by this section and making the finding required by section 69-05.2-10-04. 69-05.2-09-04. Permit applications - Operation plans - Blasting.

Each application must contain a blasting plan explaining how the applicant intends to comply with

chapter 69-05.2-17 and subsection 4 of North Dakota Century Code section 38-14.1-14 and including:

1.Types and approximate amounts of explosives for each type of blasting operation. The plan must identify the maximum amount of explosives to be detonated within any eight millisecond period and the maximum allowable limit on ground vibration for all structures not listed in subsection 7 of section 69-05.2-17-05.

2.Procedures and plans for recording and retaining information on:

a.Drilling patterns, including size, number, depths, and spacing of holes.

b.Charge and packing of holes.

c.Types of fuses and detonation controls.

d.Sequence and timing of firing holes.

3.Blasting warning and site access control equipment and procedures.

4.Types, capabilities, sensitivities, and locations of blast monitoring equipment and procedures.

5.Plans for recording and reporting results of preblasting surveys, if required.

6.The public notice content, procedure for changing the public notice, and a listing of landowners, government agencies, and other interested parties that will receive the notices.

7.Unavoidable hazardous conditions needing deviations from the blasting schedule and a general procedure outlining implementation of an emergency blasting process.

8.A map showing areas in which:

a.Blasting is prohibited under section 69-05.2-17-05.

b.The maximum permissible weight of explosives to be detonated is established by subsection 7 of section 69-05.2-17-05. The map must show the maximum weight of explosives at intervals not exceeding four hundred feet [121.92 meters] and continue until the maximum amount specified in subsection 1. 69-05.2-09-05. Permit applications - Operation plans - Air pollution control.

The applicant shall specify the measures to comply with the air pollution control requirements of the department of environmental quality and any other measures necessary to effectively control wind erosion and attendant air pollution.

History: Effective August 1, 1980; amended effective May 1, 1990; June 1, 1997. 69-05.2-09-06. Permit applications - Operation plans - Transportation facilities.

1.Each application must contain a detailed description of each road, conveyor, or rail system to be constructed, used, or maintained. Appropriate maps, descriptions, profiles, and cross sections must be included to show:

a.Locations.

b.Specifications for each road width, gradient, surfacing material, cut, fill embankment, culvert, bridge, drainage ditch, low-water crossing, and drainage structure.

c.Plans for stabilizing road cut and fill embankments, ditches, drains, and other side slopes.

d.Specifications for each road to be located in the channel of an intermittent or perennial stream under subsection 4 of section 69-05.2-24-01.

e.Specifications for each ford of intermittent or perennial streams to be used as a temporary route under subsection 4 of section 69-05.2-24-03.

f.Measures to obtain commission approval for altering or relocating a natural drainageway under subdivision e of subsection 5 of section 69-05.2-24-03.

g.Specifications for each low-water crossing of intermittent or perennial streams to provide maximum protection of the stream under subdivision f of subsection 5 of section 69-05.2-24-03.

h.Plans to remove and reclaim each road not retained under the proposed postmining land use, and a schedule for removal and reclamation.

2.The plans and drawings of each primary road must be prepared by, or under the direction of and certified by, a qualified registered professional engineer with experience in the design and construction of roads. The certification must state that the plans and drawings meet the requirements of this article, current and prudent engineering practices, and any design criteria established by the commission.

History: Effective August 1, 1980; amended effective May 1, 1990; May 1, 1992. 69-05.2-09-07. Permit applications - Operation plans - Relocation or use of public roads.

Each application must describe, with appropriate maps and cross sections, measures to ensure the interests of landowners and the public are protected if the applicant plans to:

1.Conduct surface mining activities within one hundred feet [30.48 meters] of the right-of-way line of any public road, except where mine access or haul roads join that right of way; or

2.Relocate a public road. 69-05.2-09-08. Permit applications - Operation plans - Protection of public parks.

For public parks or places listed on the national register of historic places that may be adversely affected by the proposed operations, each plan must describe the measures to be used:

1.To prevent adverse impacts; or

2.If valid existing rights exist or joint agency approval is to be obtained under section 69-05.2-04-01, to minimize adverse impacts.

History: Effective August 1, 1980; amended effective June 1, 1983; June 1, 1986; May 1, 1990. 69-05.2-09-09. Permit applications - Operation plans - Surface water management - Ponds, impoundments, banks, dams, embankments, and diversions.

1.Each application must include a surface water management plan describing each water management structure intended to meet the requirements of chapter 69-05.2-16. Each plan must:

a.Identify and show on a map of appropriate scale the locations of proposed ponds, impoundments, and diversions, whether temporary or permanent, and include:

(1)Each watershed boundary within the permit and adjacent areas.

(2)Proposed disturbance boundaries within each watershed and the area of each watershed.

b.Provide the following preliminary information for each pond or impoundment:

(1)The purpose of the structure.

(2)A typical cross section of the proposed structure.

(3)The name and size in acres [hectares] of the watershed affecting the structure.

(4)Other preliminary hydrologic and geologic information required to assess the hydrologic impact of the structure.

c.If underground mining operations occurred in the area, include a survey describing the potential effect of subsidence on the structure from the past underground mining activities.

d.Include a schedule of the approximate construction dates for each structure and, if appropriate, a timetable to remove each structure.

e.Include a statement that detailed design plans, as required in subsection 2, will be submitted to the commission, provided that:

(1)Detailed design plans for structures scheduled for construction within the first year of the permit term must be submitted with the application.

(2)Detailed design plans for a structure must be approved by the commission prior to construction.

f.Identify the location of proposed temporary coal processing waste disposal areas, along with design specifications to meet the requirements in section 69-05.2-19-03.

g.Identify the location of proposed coal processing waste dams and embankments along with design specifications to meet the requirements in chapter 69-05.2-20. The plan must include the results of a geotechnical investigation of each proposed coal dam or embankment foundation area, to determine the structural competence of the foundation which will support the proposed dam or embankment and the impounded material. The geotechnical investigation must be planned and supervised by an engineer or engineering geologist, as follows:

(1)Determine the number, location, and depth of borings and test pits using current prudent engineering practice for the size of the dam or embankment, quantity of material to be impounded, and subsurface conditions.

(2)Consider the character of the overburden, the proposed abutment sites, and any adverse geotechnical conditions which may affect the particular dam, embankment, or reservoir site.

(3)Identify springs, seepage, and ground water flow observed or anticipated during wet periods in the proposed dam or embankment area.

(4)Consider the possibility of mudflows or other landslides into the dam, embankment, or impounded material.

h.Include a statement that the plan has been prepared by, or under the direction of, and certified by a qualified registered professional engineer or qualified registered land surveyor experienced in the design of impoundments. The plans must be certified as meeting the requirements of this article using current, prudent engineering practices and any design requirements established by the commission.

2.The application must contain detailed design plans for each structure identified in paragraph 1 of subdivision e of subsection 1. These plans must:

a.Meet all applicable requirements of sections 69-05.2-16-06, 69-05.2-16-07, 69-05.2-16-08, 69-05.2-16-09, 69-05.2-16-10, and 69-05.2-16-12.

b.Identify by watershed each mining activity along with an estimate of the affected area associated with each disturbance type.

c.Provide the total runoff and peak discharge rates attributable to the storm or storms for which the structure is designed, including supporting calculations. The plan should specify baseflow, if appropriate.

d.The estimated sediment yield of the contributing watershed, calculated according to subsection 2 of section 69-05.2-16-09, and sediment storage capacity of the structure.

e.Provide, at an appropriate scale, detailed dimensional drawings of the impounding structure including a plan view and cross sections of the length and width of the impounding structure, showing all zones, foundation improvements, drainage provisions, spillways, outlets, instrument locations, and slope protection. The plans must also show the measurement of the minimum vertical distance between the top of the impounding structure and the reservoir surface at present and under design storm conditions, permanent pool level, and other pertinent information.

f.Include graphs showing elevation - area - capacity curves to the top of the embankment.

g.Describe the spillway features and include stage discharge curves and calculations used in their determination.

h.If an impoundment meets the size or other criteria of subsection 17 or 18 of section 69-05.2-16-09, include a stability analysis of the structure. The stability analysis must include strength parameters, pore pressures, and long-term seepage conditions. The plan must also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods.

i.Demonstrate that detention time criteria of section 69-05.2-16-09 can be met, if applicable.

j.Describe any geotechnical investigations, design, and construction requirements of the structure including compaction procedures and testing, including any direct connections of the impoundment basin to ground water flow in the area.

k.If an impoundment meets the size or other criteria of subsection 17 of section 69-05.2-16-09, include a copy of the plan sent to the district manager of the United States mine safety and health administration.

l.Describe proposed structure operations, maintenance and, if appropriate, a timetable for removal and reclamation plans.

m.Provide detailed design specifications for diversions, including maps, cross sections, and longitudinal profiles which illustrate existing ground surface and proposed grade of all stream channel diversions and other diversions to be constructed within the permit area or feeding into the contributing drainage of an impoundment.

n.Include additional information as necessary to enable the commission to completely evaluate the structure.

History: Effective August 1, 1980; amended effective June 1, 1983; June 1, 1986; May 1, 1990; May 1, 1992; January 1, 1993; May 1, 1999. 69-05.2-09-10. Permit applications - Operation plans - Surface mining near underground mining.

The application must contain a description of measures needed to comply with section 69-05.2-13-06 if mining activities will occur within five hundred feet [152.04 meters] of an underground mine.

History: Effective August 1, 1980; amended effective May 1, 1990; January 1, 1993. 69-05.2-09-11. Permit applications - Reclamation plans - General requirements.

Each application must contain a reclamation plan for affected lands, showing how the applicant will comply with chapters 69-05.2-13 through 69-05.2-26. The plan must, at a minimum, include:

1.A discussion of how the scheduling of each reclamation phase meets the requirements for contemporaneous reclamation in subsection 14 of North Dakota Century Code section 38-14.1-24 and section 69-05.2-21-01.

2.A detailed reclamation cost estimate and supporting calculations.

3.Postmining topographic and area slope maps drawn to the specifications in subsection 3 of

section 69-05.2-08-02, and a plan for backfilling, soil stabilization, compacting, and grading.

The plan must provide cross sections and volumetric calculations or other information to show the final topography can be achieved.

4.A plan for the removal, reshaping, and final reclamation of each facility identified and discussed in this chapter.

5.A plan for the removal, storage, and redistribution of suitable plant growth material and other suitable strata to meet the requirements of chapter 69-05.2-15. This plan must provide the volumes, by ownership, of topsoil and subsoil available in all areas to be disturbed. These volumes must be determined from the soil survey required by section 69-05.2-08-10.

6.A revegetation plan to meet the requirements of chapter 69-05.2-22. The plan must include:

a.A revegetation schedule.

b.Seed and seedling species and amounts per acre [0.40 hectare].

c.Planting and seeding methods.

d.Mulching techniques.

e.Irrigation, if appropriate, and any pest and disease control measures.

f.General management plans until final bond release.

g.Methods to determine the success of revegetation required in section 69-05.2-22-07.

h.A soil testing plan for evaluating the results of suitable plant growth material handling and reclamation procedures related to revegetation.

7.Measures to ensure that all debris, toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with sections 69-05.2-19-04 and 69-05.2-21-03 and a description of the contingency plans developed to preclude their sustained combustion.

8.A description, including appropriate cross sections and maps, of measures to manage mine openings, and to plug, case, or manage exploration holes, other boreholes, wells, and other openings within the permit area, under chapter 69-05.2-14.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; January 1, 1993. 69-05.2-09-12. Permit applications - Operation and reclamation plans - Surface and ground water monitoring for protection of the hydrologic balance.

1.The description required by subdivision i of subsection 2 of North Dakota Century Code

section 38-14.1-14 must cover the proposed permit, and adjacent areas and include:

a.Appropriate maps and technical drawings.

b.A discussion of the control of surface and ground water drainage into, through, and out of the permit area under the surface water management requirements of section 69-05.2-09-09 and its relation to the monitoring requirements of this section.

c.A plan for the treatment, where required, of surface and ground water drainage from the disturbed area, and proposed quantitative limits on pollutants in discharges subject to

section 69-05.2-16-04, according to the more stringent of:

(1)North Dakota Century Code section 38-14.1-24 and this article; or (2)Other applicable state laws.

d.A plan for restoring the approximate recharge capacity of the permit area required in

section 69-05.2-16-15.

e.A plan, based on the probable hydrologic consequences (PHC) determination, for the collection, recording, and reporting of ground and surface water quality and quantity data, according to sections 69-05.2-16-05, 69-05.2-16-13, and 69-05.2-16-14.

2.The determination required by subdivision o of subsection 1 of North Dakota Century Code

section 38-14.1-14 must include a hydrologic reclamation plan that specifically addresses any potential adverse impacts identified in the probable hydrologic consequences determination and contains preventive and remedial measures for those impacts. 69-05.2-09-13. Permit applications - Reclamation plans - Postmining land use.

1.Each reclamation plan must contain a postmining land use map and detailed description of the postmining land use explaining:

a.How the postmining land use will be achieved and the support activities needed.

b.The detailed management plan for native grassland or tame pastureland during the liability period including any plans for livestock grazing prior to final bond release.

2.If land use changes are proposed, the description must be accompanied by materials needed for alternate land use approval under chapter 69-05.2-23.

3.The applicant shall submit a copy of the surface owner's preference statement and comments by the state and local authorities who would have to initiate, implement, approve, or authorize the land use following reclamation. 69-05.2-09-14. Permit applications - Reclamation plans - Disposal of initial pit spoil and other excess spoil.

1.Each application must contain descriptions, maps, and cross-section drawings of the disposal site and spoil disposal area design according to chapter 69-05.2-18. These plans must describe the geotechnical investigation, design, construction, operation, maintenance, and removal, if appropriate, of the site and structures.

2.Each application must contain the results of a geotechnical investigation of the disposal site including:

a.The character of bedrock and any adverse geologic conditions in the disposal area.

b.Springs, seepage, and ground water flow observed or anticipated in the disposal site during wet periods.

c.The potential effects of subsidence of the subsurface strata due to past and future mining operations.

d.A stability analysis including strength parameters, pore pressures, and long-term seepage conditions, and a description of all engineering design assumptions, calculations and alternatives considered in selecting the design specifications and methods. The commission may waive the stability analysis after analyzing the results of the geotechnical investigation if:

(1)No adverse geologic conditions exist in the disposal area.

(2)There are no springs, and there is no seepage or ground water flow in the disposal site area.

(3)There is no potential for subsidence of subsurface strata due to past and future mining operations.

(4)The slope of the disposal area does not exceed twenty percent. 69-05.2-09-15. Permit applications - Operation and reclamation plans - Prime farmlands.

If appropriate, the applicant shall submit a mining and restoration plan for prime farmland containing:

1.The cooperative soil survey that identified the prime farmland, soil mapping units, and representative soil profile descriptions. The plan must include soil horizon depths, pH, and range of soil densities for each prime farmland soil mapping unit.

2.The method and equipment for removing, storing, and respreading suitable plant growth materials.

3.Locations for separate stockpiling and plans for soil stabilization before redistribution.

4.The postmining topographic map showing the prime farmland respread areas.

5.Applicable documentation that supports the use of other suitable strata, instead of the A, B, or C soil horizon, to obtain equivalent or higher levels of productivity as nonmined prime farmlands in the surrounding area under equivalent management levels.

6.Plans for seeding or cropping the area and conservation practices. Proper adjustments for seasons must be proposed so that final graded land is not exposed to erosion when vegetation or conservation practices cannot be established or implemented.

7.Available agricultural school studies or other scientific data for areas with comparable soils, climate, and management (including water management) that affirmatively demonstrate achievement of postmining productivity equal to or greater than premining productivity.

8.If a reclaimed cropland tract will contain a mixture of prime and nonprime farmlands and commission approval of a single yield standard for the entire tract is requested as allowed by subdivision l of subsection 4 of section 69-05.2-22-07, a detailed description and comparison of the soil mapping units and acreages occurring in the prime and nonprime parcels must be provided. The comparison must include the appropriate yield calculations for the prime and nonprime parcels as well as the single yield standard that is proposed.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 2001. 69-05.2-09-16. Permit applications - Operation and reclamation plans - Alluvial valley floors.

Each application must contain operation and reclamation plans for lands in the permit or adjacent area identified as an alluvial valley floor. The plan must describe the mining and reclamation procedures that will protect or restore the alluvial valley floor characteristics or essential hydrologic functions identified in section 69-05.2-08-14 and meet the performance standards of chapter 69-05.2-25. The applicant shall submit an alluvial valley floor monitoring program under section 69-05.2-25-03 designed to collect sufficient information to demonstrate compliance with the approved plans. 69-05.2-09-17. Permit applications - Operation and reclamation plans - Fish and wildlife resources protection and enhancement plan.

1.Each application must include a plan of how, to the extent possible using the best technology currently available, the operator will minimize disturbances and adverse impacts on fish and wildlife and related environmental values, including compliance with the Endangered Species Act, during surface coal mining and reclamation operations, and how enhancement of these resources will be achieved where practicable. The plan must:

a.Be consistent with the requirements of section 69-05.2-13-08.

b.Apply, at a minimum, to species and habitats identified under section 69-05.2-08-15.

c.Include protective measures that will be used during active mining. The measures may include establishment of buffer zones, selective location and special design of haul roads and powerlines, and monitoring of surface water quality and quantity.

d.Include enhancement measures that will be used during the reclamation phase to develop aquatic and terrestrial habitat. The measures may include restoration of streams and other wetlands, retention of ponds and impoundments, establishment of vegetation for wildlife food and cover, and replacement of perches and nest boxes. If the plan does not include enhancement measures, a statement must be given explaining why enhancement is not practicable.

e.Include monitoring of selected indicator species to assess surface mining effects on fish and wildlife resources. The applicant shall consult with the commission and state game and fish department before selecting the indicator species.

2.Within ten days of the request, the commission will provide the plan to the United States department of the interior, fish and wildlife service regional or field office for their review.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992;

January 1, 1993.

Law Implemented: NDCC 38-14.1-14, 38-14.1-24 69-05.2-09-18. Permit applications - Operations and reclamation plans - Auger mining.

If applicable, the applicant shall submit a plan explaining how the applicant intends to comply with

section 69-05.2-13-12 and subsection 1.1 of North Dakota Century Code section 38-14.1-24. This plan must contain:

1.A description of the augering methods.

2.A map showing where augering operations will be conducted.

3.A description of how the applicant intends to ensure the long-term stability of the augered area. This description should contain specific engineering designs ensuring that:

a.Material backfilled into the holes can be compacted to provide sufficient strength to prevent subsidence;

b.The coal remaining between the auger holes and the overlying overburden is sufficiently strong to prevent subsidence; or

c.The auger mined area can be collapsed in a controlled manner through the use of explosive or other techniques to eliminate future subsidence.

4.A description of how auger holes will be sealed to prevent pollution of surface and ground water.

History: Effective September 1, 1984; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-14, 38-14.1-24 69-05.2-09-19. Permit applications - Operations and reclamation plans - Coal preparation plants not located within the permit area of a mine.

1.This section applies to any person who operates or intends to operate a coal preparation plant in connection with a coal mine but outside the permit area for a specific mine. A permit to operate must be obtained from the commission.

2.In addition to meeting the applicable provisions of chapters 69-05.2-05, 69-05.2-06, 69-05.2-07, 69-05.2-08, and this chapter, any application for a permit for operations covered by this section must contain an operation and reclamation plan for the construction, operation, maintenance, modification, and removal of the preparation plant and associated support facilities. The plan must demonstrate that those operations will be conducted in compliance with section 69-05.2-13-13.

3.No permit will be issued for any operation covered by this section unless the commission finds in writing that, in addition to meeting all other applicable requirements of this article, the operations will be conducted according to the requirements of section 69-05.2-13-13.

History: Effective January 1, 1987; amended effective May 1, 1990; May 1, 1992.

General Authority: NDCC 38-14.2-03

Chapter 69-05.2-10 Permit Applications - Review, Public Participation, and Approval or Disapproval

N.D. Admin. Code 69-05.2-10 Permit Applications - Review, Public Participation, and Approval or Disapproval

CHAPTER 69-05.2-10

PERMIT APPLICATIONS - REVIEW, PUBLIC PARTICIPATION, AND APPROVAL OR

DISAPPROVAL

Section 69-05.2-10-01Permit Applications - Public Notices of Filing and Entering Data Into the Applicant Violator System 69-05.2-10-02Permit Applications - Informal Conferences 69-05.2-10-03Permit Applications - Criteria for Permit Approval or Denial 69-05.2-10-04Permit Applications - Criteria for Permit Approval or Denial - Existing Structures 69-05.2-10-05Permit Applications - Approval or Denial Actions 69-05.2-10-06Permit Applications - Permit Approval for Surface Disturbances Over Federal Mineral Estates 69-05.2-10-07Permit Applications - Challenges to Ownership or Control Listings and Findings 69-05.2-10-08Permit Applications - Commission Actions Related to Ownership and Control Information After Permit Issuance 69-05.2-10-09Permit Applications - Ownership and Control Requirements for Permittees After Permit Issuance 69-05.2-10-01. Permit applications - Public notices of filing and entering data into the applicant violator system.

1.The advertisement required by North Dakota Century Code section 38-14.1-18 must also include:

a.The applicant's name and business address.

b.A map or description which must:

(1)Clearly show or describe towns, rivers, streams, or other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the permit area.

(2)Clearly show or describe the exact location and boundaries of the permit area.

(3)Show the north point (if a map).

(4)State the name of each owner of record of surface rights and, if the applicant proposes to mine coal or conduct activities that may impact future coal recovery, the names of each owner of record of coal rights within the permit boundaries.

c.The address of the commission, to whom written comments, objections, or requests for informal conferences on the application may be submitted.

d.If an applicant seeks a permit to conduct operations within one hundred feet [30.48 meters] of the outside right of way of a public road or to relocate a public road, a concise statement describing the road, the particular part to be relocated, where the relocation is to occur, and its duration.

2.The commission will distribute appropriate portions of the application to the state advisory committee specified in subsection 2 of North Dakota Century Code section 38-14.1-21 formed to aid the commission in evaluating the operations and reclamation plan. Members of the committee shall forward their evaluation to the commission within forty-five days of receipt.

3.If the application contains prime farmlands to be mined, the commission will furnish the state conservationist of the natural resource conservation service with the prime farmland reclamation plan submitted under section 69-05.2-09-15. The state conservationist shall provide review and comment on the proposed method of soil reconstruction and suggest remedial revisions if the plan is considered inadequate.

4.The applicant shall make a copy of the complete application available for the public to inspect and copy by filing it with the county auditor in the county where the mining is proposed. The applicant shall file the copy by the first date of the newspaper advertisement and any subsequent changes at the same time they are submitted to the commission.

5.In addition to the requirements of subsection 3 of section 38-14.1-18 of the North Dakota Century Code, the commission will notify all federal or state government agencies with

authority to issue permits and licenses applicable to the proposed operations as part of the permit coordinating process and those with an interest in the proposed operations. These agencies include the soil conservation district office, the local United States army corps of engineers district engineer, the national park service, and the United States fish and wildlife service.

6.The commission will provide notice and opportunity for hearing for persons seeking and opposing disclosure prior to declaring any permit information confidential. Notice will be published in the official county newspaper of the county where the proposed operations will be located at least fifteen days prior to the hearing. Information requested to be held confidential must be clearly identified by the applicant and submitted separately. Confidential information is limited to:

a.Analysis of the chemical and physical properties of the coal to be mined, except information on coal components potentially toxic in the environment.

b.The nature and location of archaeological resources on public land and Indian land as required by the Archaeological Resources Protection Act of 1979.

7.Upon deeming an application complete, the commission will:

a.Enter into the applicant violator system maintained by the office of surface mining reclamation and enforcement the business entity information that the applicant is required to submit under section 69-05.2-06-01 and information required by section 69-05.2-06-02 pertaining to violations which are unabated or uncorrected after the abatement or correction period has expired. The applicant violator system, or AVS, is the automated information system of applicant, permittee, operator, violation and related data that the office of surface mining reclamation and enforcement maintains to assist in implementing the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201, et seq.].

b.Update the information referred to in subdivision a in AVS upon verifying any additional information submitted or discovered during the review of the permit application.

8.The commission will rely upon the information that the applicant submits under section 69-05.2-06-01, information from AVS, and any other available information, to review the applicant's and operator's organizational structure and ownership or control relationships. This review will be conducted before a permit eligibility determination is made in accordance with subsections 1 through 5 of section 69-05.2-10-03.

9.The commission will rely upon the information that the applicant submits under section 69-05.2-06-01, information from AVS, and any other available information to review the applicant's and operator's permit histories and previous mining experiences. The commission will also determine if the applicant and operator have previous mining experience. If the applicant or operator does not have any previous mining experience, the commission may conduct additional reviews to determine if someone else with mining experience controls the mining operation. These reviews will be conducted before a permit eligibility determination is made in accordance with subsections 1 through 5 of section 69-05.2-10-03.

10.The commission will rely upon the information that the applicant submits under section 69-05.2-06-02, a report from AVS, and any other available information to review histories of compliance for the applicant, any person who owns or controls the applicant, the operator, or operations owned or controlled by the operator, in regard to violations of any law or rule of this state, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201, et seq.]. or any law or rule in any state enacted under federal law or

regulation pertaining to air or water environmental protection, incurred in connection with any surface coal mining and reclamation operation. This review will be conducted before a permit eligibility determination is made in accordance with subsections 1 through 5 of section 69-05.2-10-03.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; June 1, 1997; April 1, 2007; April 1, 2013.

Law Implemented: NDCC 38-14.1-18 69-05.2-10-02. Permit applications - Informal conferences.

1.A request for an informal conference under subsection 5 of North Dakota Century Code

section 38-14.1-18 must be in writing and:

a.Briefly summarize the issues the requester will raise.

b.State whether the requester desires to have the conference in the locality of the operations.

2.The commission will appoint one or more hearing examiners to preside at informal conferences on applications held under this section. No commissioner may preside at such informal conference. Hearing examiners shall have the authority delegated under section 69-02-04-07.

3.Informal conferences held under this section may be used by the commission as the public hearing opportunity required under section 69-05.2-04-01 on proposed uses or relocation of public roads.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-18 69-05.2-10-03. Permit applications - Criteria for permit approval or denial.

1.The commission will not issue the permit if any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant is currently in violation of any law or rule of this state, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], or any law or

rule in any state enacted under federal law or regulation pertaining to air or water environmental protection, incurred in connection with any surface coal mining and reclamation operation, or if any of the following are outstanding:

a.Delinquent civil penalties under North Dakota Century Code sections 38-12.1-08 and 38-14.1-32, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], or any law or rule in any state enacted under federal law or regulation pertaining to air or water environmental protection, incurred in connection with any surface coal mining and reclamation operation.

b.Bond forfeitures where violations upon which the forfeitures were based have not been corrected.

c.Delinquent abandoned mine reclamation fees.

d.Unabated violations of federal and state laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining and reclamation operation.

e.Unresolved federal and state failure-to-abate cessation orders.

f.Unresolved imminent harm cessation orders.

2.If a current violation exists, the commission will require the applicant or person who owns or controls the applicant, before the permit is issued, to:

a.Submit proof that the violation has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation; or

b.Establish that the applicant, or any person owned or controlled by either the applicant or any person who owns or controls the applicant, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of that violation.

If the administrative or judicial authority either denies a stay applied for in the appeal or affirms the violation, then any operations being conducted under a permit issued under this section must immediately cease, until the provisions of subdivision a are satisfied.

3.Any permit issued on the basis of proof submitted under subdivision a of subsection 2 that a violation is being corrected, or pending the outcome of an appeal under subdivision b of subsection 2, will be conditionally issued.

4.The commission will not issue a permit if it finds the applicant, anyone who owns or controls the applicant, or the operator specified in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of any law or rule of this state, the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1201 et seq.], or any state or federal program approved under the Surface Mining Control and Reclamation Act of 1977, of such nature and duration, and with resulting irreparable damage to the environment as to indicate an intent not to comply with those laws, rules, or programs. The applicant, anyone who owns or controls the applicant, or the operator must be given an opportunity for hearing on the determination under North Dakota Century Code section 38-14.1-30.

5.After an application is deemed ready for approval, but before the permit is issued, the commission's decision to approve or disapprove the application will be made, based on the compliance review required by subsection 1, in light of any new information submitted under subsection 2 of section 69-05.2-06-01 and subsection 6 of section 69-05.2-06-02. After that information is submitted, the commission will again request a compliance history report from AVS to determine if there are any unabated or uncorrected violations which affect the applicant's permit eligibility under subsections 1 through 4. This report will be requested no more than five business days before the permit is issued by the commission. If the commission then determines that the applicant is not eligible for a permit, written notification of the decision will be sent to the applicant explaining the reasons and the appeal rights that are available under North Dakota Century Code section 38-14.1-30.

6.In addition to the requirements of subsection 3 of North Dakota Century Code section 38-14.1-21, no permit or significant revision will be approved, unless the application affirmatively demonstrates and the commission finds, in writing, on the basis of information in the application or otherwise available, which is documented in the approval and made available to the applicant, that:

a.The permit area is not on any lands subject to the prohibitions or limitations of North Dakota Century Code section 38-14.1-07 or the area has met the application review procedures of section 69-05.2-04-01.1.

b.For alluvial valley floors:

(1)The applicant has obtained either a negative determination; or (2)If the permit area or adjacent area contains an alluvial valley floor:

(a)The operations would be conducted according to chapter 69-05.2-25 and all applicable requirements of North Dakota Century Code chapter 38-14.1.

(b)Any change in the use of the lands covered by the permit area from its premining use in or adjacent to alluvial valley floors will not interfere with or preclude the reestablishment of the essential hydrologic functions of the alluvial valley floor.

(3)The significance of the impact of the operations on farming will be based on the relative importance of the vegetation and water of the developed grazed or hayed alluvial valley floor area to the farm's production, or any more stringent criteria established by the commission as suitable for site-specific protection of agricultural activities in alluvial valley floors.

(4)Criteria for determining whether a mining operation will materially damage the quantity or quality of waters include:

(a)Potential increases in the concentration of total dissolved solids of waters supplied to an alluvial valley floor to levels above the threshold value at which crop yields decrease, based on crop salt tolerance research studies approved by the commission, unless the applicant demonstrates compliance with subdivision e of subsection 3 of North Dakota Century Code section 38-14.1-21.

(b)The increases in subparagraph a will not be allowed unless the applicant demonstrates, through testing related to local crop production that the operations will not decrease crop yields.

(c)For types of vegetation specified by the commission and not listed in approved crop tolerance research studies, a consideration must be made of any observed correlation between total dissolved solids concentrations in water and crop yield declines.

(d)Potential increases in the average depth to water saturated zones (during the growing season) within the root zone that would reduce the amount of subirrigated land compared to premining conditions.

(e)Potential decreases in surface flows that would reduce the amount of irrigable land compared to premining conditions.

(f)Potential changes in the surface or ground water systems that reduce the area available to agriculture as a result of flooding or increased root zone saturation.

(5)For the purposes of this subsection, a farm is one or more land units on which agricultural activities are conducted. A farm is generally considered to be the combination of land units with acreage [hectarage] and boundaries in existence prior to July 1, 1979, or, if established after July 1, 1979, with boundaries based on enhancement of the farm's agricultural productivity not related to mining operations.

(6)If the commission determines the statutory exclusions of subsection 3 of North Dakota Century Code section 38-14.1-21 do not apply and that any of the findings required by this section cannot be made, the commission may, at the applicant's request:

(a)Determine that mining is precluded and deny the permit without the applicant filing any additional information required by this section; or (b)Prohibit surface coal mining and reclamation operations in all or part of the area to be affected by mining.

c.The applicant has, with respect to prime farmland, obtained either a negative determination or if the permit area contains prime farmlands:

(1)The postmining land use will be cropland.

(2)The permit specifically incorporates the plan submitted under section 69-05.2-09-15 after consideration of any revisions suggested by the natural resource conservation service.

(3)The operations will be conducted in compliance with chapter 69-05.2-26 and other standards required by this article and North Dakota Century Code chapter 38-14.1.

(4)The permit demonstrates that the applicant has the technological capability to restore prime farmland, within a reasonable time, to equivalent or higher yields as nonmined prime farmland in the surrounding area under equivalent management practices.

(5)The aggregate total prime farmland acreage will not be decreased from that which existed prior to mining based on the cooperative soil survey. Any postmining water bodies that are part of the reclamation must be located within the nonprime farmland portions of the permit area. If any such water bodies reduce the amount of prime farmland that a surface owner had before mining, the affected surface owners must consent to the creation of the water bodies and the plans must be approved by the commission.

d.The operations will not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats.

e.The applicant has submitted proof that all reclamation fees required by 30 CFR subchapter R have been paid.

f.The applicant has, if applicable, satisfied the requirements for approval of a cropland postmining land use under section 69-05.2-22-01.

7.The commission may make necessary changes in the permit to avoid adverse effects on finding that operations may adversely affect any publicly owned park or places included on the state historic sites registry or the national register of historic places. Operations that may adversely affect those parks or historic sites will not be approved unless the federal, state, or local governmental agency with jurisdiction over the park or site agrees, in writing, that mining may be allowed.

History: Effective August 1, 1980; amended effective June 1, 1983; June 1, 1986; May 1, 1990; May 1, 1992; June 1, 1994; July 1, 1995; June 1, 1997; May 1, 2001; January 1, 2009; April 1, 2013.

Law Implemented: NDCC 38-14.1-21, 38-14.1-33 69-05.2-10-04. Permit applications - Criteria for permit approval or denial - Existing structures.

1.No application which proposes to use an existing structure will be approved, unless the applicant demonstrates and the commission finds in writing that:

a.If the applicant proposes to use an existing structure under the exemption provided in subsection 4 of section 69-05.2-09-03:

(1)The structure meets the performance standards of North Dakota Century Code

chapter 38-14.1 and this article.

(2)There will be no significant harm to the environment or public health or safety.

b.If the commission finds that an existing structure does not meet the performance standards, the applicant shall submit a compliance plan for modifying or rebuilding the structure. The permit will not be issued unless the commission finds that:

(1)The modification or reconstruction will bring the structure into compliance with the design and performance standards of this article and North Dakota Century Code

section 38-14.1-24 as soon as possible, but not later than six months after permit issuance;

(2)The risk to the environment or to public health or safety is not significant during modification or reconstruction; and (3)The applicant will monitor the structure to determine compliance with this article and North Dakota Century Code section 38-14.1-24.

2.Should the commission find that the existing structure cannot be reconstructed without causing significant harm to the environment or public health or safety, the applicant shall abandon the existing structure. The structure must not be used after the effective date of the permit. Structure abandonment must proceed on a schedule approved by the commission under section 69-05.2-13-11.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-14, 38-14.1-21 69-05.2-10-05. Permit applications - Approval or denial actions.

The commission will approve, require modification of, or deny all applications for permits according to the following:

1.The commission will not approve or disapprove a permit application prior to the expiration of the thirty-day period for requesting an informal conference or the filing of written comments or objections following the last publication of the public notice required by North Dakota Century Code section 38-14.1-18.

2.If no informal conference has been held under North Dakota Century Code section 38-14.1-19, the commission will approve, require modification of, or deny all permit applications within the review period specified in section 69-05.2-05-01.

3.If an application is approved, the permit will contain the following conditions:

a.The permittee shall minimize adverse impacts to the environment or public health and safety resulting from noncompliance with any term or condition, including:

(1)Accelerated or additional monitoring necessary to determine the nature and extent of noncompliance and the results of the noncompliance.

(2)Immediate implementation of compliance measures.

(3)Warning, as soon as possible after learning of noncompliance, any person whose health and safety is in imminent danger.

b.The permittee shall dispose of solids, sludge, filter backwash, or pollutants removed in the treatment or control of waters or atmospheric emissions as required by North Dakota Century Code chapter 38-14.1, this article, and any other applicable law.

c.The permittee shall conduct operations:

(1)To prevent significant, imminent environmental harm to public health or safety; and (2)Utilizing methods specified in the permit if the commission approves alternative methods of compliance with the performance standards of North Dakota Century Code section 38-14.1-24 and this article.

d.The operator shall pay all reclamation fees required by 30 CFR subchapter R for coal produced under the permit for sale, transfer, or use.

e.Within thirty days after a cessation order is issued under North Dakota Century Code

section 38-14.1-28, except where a stay of the cessation order is granted and remains in effect, the permittee shall either submit the following information, current to the date the cessation order was issued, or notify the commission in writing that there has been no change since the last submittal:

(1)Any new information needed to correct or update the information previously submitted under subdivision e of subsection 1 of section 69-05.2-06-01; or (2)If not previously submitted, the information required from a permit applicant by subdivision e of subsection 1 of section 69-05.2-06-01.

4.When the application is approved, the commission will publish notice in the official county newspapers and in daily newspapers of general circulation in the area of the proposed operations. The publication will provide a summary of the decision and notice that any person with an interest which is or may be adversely affected may request and initiate formal hearing procedures on the decision and may request temporary relief from permit issuance within thirty days of the publication of the notice.

5.At the time of publication of the decision required by subsection 4, the commission will:

a.Provide copies of all findings, decisions, and orders on an application to:

(1)Each person and government official who filed a written objection or comment.

(2)Each reclamation advisory committee member.

(3)The office of surface mining reclamation and enforcement, together with a copy of the approved application materials.

b.Notify the appropriate government officials in the relevant county that a permit application has been approved and describe the location of the lands.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992.

Law Implemented: NDCC 38-14.1-03, 38-14.1-21 69-05.2-10-06. Permit applications - Permit approval for surface disturbances over federal mineral estates.

The commission may approve and issue permits, revisions, and renewals for operations on lands where the surface estate is nonfederal and the mineral estate is federal, if:

1.The proposed surface disturbances support operations on adjacent nonfederal lands.

2.The commission consults with the office of surface mining reclamation and enforcement, to ensure that actions are not taken which would substantially and adversely affect the federal mineral estate.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990. 69-05.2-10-07. Permit applications - Challenges to ownership or control listings and findings.

1.A person may challenge a listing or finding of ownership or control using the procedures detailed below if that person is:

a.Listed in a permit application or in AVS as an owner or controller of an entire surface coal mining operation, or any portion or aspect thereof;

b.Found to be an owner or controller of an entire surface coal mining operation, or any portion or aspect thereof, under section 69-05.2-10-08 or 69-05.2-32-01; or

c.An applicant or permittee affected by an ownership and control listing or finding.

2.In order to challenge an ownership and control listing or finding, a written explanation must be submitted to the regulatory authority regarding the basis of the challenge along with any evidence or explanatory materials outlined in subsection 7. If the challenge concerns a pending permit application, the written explanation must be submitted to the regulatory

authority with jurisdiction over the application. If the challenge concerns the applicant's ownership and control of a surface coal mining operation and the person is not currently seeking a permit, the written explanation must be submitted to the regulatory authority with jurisdiction over the surface coal mining operation.

3.When a challenge concerns a violation under the jurisdiction of a different regulatory authority, the commission will consult the regulatory authority with jurisdiction over the violation and the AVS office to obtain additional information.

4.If the commission is responsible for deciding a challenge under this section, it may request an investigation by the AVS office.

5.At any time a person listed in AVS as an owner or controller of a surface coal mining operation may request an informal explanation from the AVS office as to the reason it is shown in the AVS in an ownership or control capacity.

6.When a challenge is made to a listing of ownership and control, or a finding of ownership and control, the challenger shall prove by a preponderance of the evidence that the challenger either:

a.Does not own or control the entire operation or relevant portion or aspect thereof; or

b.Did not own or control the entire operation or relevant portion or aspect during the relevant time period.

7.In order to meet the burden of proof in subsection 6, the challenger shall present reliable, credible, and substantial evidence and any explanatory materials to the regulatory authority. A request to hold materials submitted under this section as a trade secret may be made to the commission following the procedures of chapter 69-02-09. Acceptable materials include:

a.Notarized affidavits containing specific facts concerning the duties that were performed for the relevant operation, the beginning and ending dates pertaining to ownership or control of the operation, and the nature and details of any transaction creating or severing ownership or control of the operation in question.

b.Certified copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records.

c.Certified copies of documents filed with or issued by any state, municipal, or federal government agency.

d.An opinion of counsel, when supported by evidentiary materials, a statement by counsel that counsel is qualified to render the opinion, and a statement that counsel has personally and diligently investigated the facts of the matter.

8.Within sixty days of receipt of an ownership and control listing or finding challenge, the commission will review and investigate the evidence and explanatory materials submitted and any other reasonable available information bearing on the challenge and issue a written decision. The decision will state whether the challenger owns or controls the relevant surface coal mining operation, or owned or controlled the operation during the relevant time period.

Decisions regarding the challenge will be promptly provided to the challenger by certified mail, return receipt requested. Service of the decision will be complete upon delivery and is not incomplete if acceptance of delivery is refused. Appeals of the written decision must be made by requesting a formal hearing under North Dakota Century Code section 38-14.1-30. The commission will also post all decisions in AVS.

9.Following the commission's written decision, or any formal hearing decision or court reviewing such decision, the commission will review the information in AVS to determine if it is consistent with the decision. If it is not, the commission will promptly inform the office of surface mining reclamation and enforcement and request that the AVS information be revised to reflect the decision.

History: Effective April 1, 2013. 69-05.2-10-08. Permit applications - Commission actions related to ownership and control information after permit issuance.

1.For the purposes of future permit eligibility determinations and enforcement actions, the commission will enter the following data into AVS:

a.Permit records will be entered within thirty days after issuing a permit or subsequent changes.

b.Unabated or uncorrected violations will be entered within thirty days after the abatement period expires for any violation.

c.Any changes to the information required under section 69-05.2-06-01 will be entered within thirty days after receiving notice of a change.

d.A change in status of violations listed in AVS will be entered within thirty days after abatement, correction, or termination of a violation, or an administrative or judicial decision affecting a violation.

2.If, at any time, it is discovered that any person owns or controls an operation with an unabated or uncorrected violation, the commission will determine whether enforcement action is appropriate under North Dakota Century Code section 38-14.1-28. The commission will enter the results of each enforcement action, including administrative and judicial decisions, into AVS.

3.The commission will serve a preliminary finding of permanent permit ineligibility under subdivision c of subsection 1 of North Dakota Century Code section 38-14.1-28 on the applicant or operator if the criteria in subdivisions a and b are met. In making a finding under this subsection, the commission will only consider control relationships and violations which would make, or would have made, the applicant or operator ineligible for a permit under subsection 4 of section 69-05.2-10-03. A preliminary finding of permanent permit ineligibility will be made if it found that:

a.The applicant or operator controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations under subdivision c of subsection 1 of North Dakota Century Code section 38-14.1-28; and

b.The violations are of such nature and duration with such resulting irreparable damage to the environment as to indicate an intent not to comply with North Dakota Century Code

chapter 38-14.1, this chapter, or the approved permit.

4.The permittee or operator may request a hearing on a preliminary finding of permanent permit ineligibility under North Dakota Century Code section 38-14.1-30.

5.If a hearing is not requested and the time for seeking a hearing has expired, the commission will enter the finding into AVS. If a hearing is requested, the commission will enter the finding into AVS only if that finding is upheld on appeal.

6.At any time, the commission may identify any person who owns or controls an entire operation or any relevant portion or aspect thereof. If such a person is identified, the commission will issue a written preliminary finding to the person and the applicant or permittee describing the nature and extent of ownership or control. The commission's written preliminary finding must be based on evidence sufficient to establish a prima facie case of ownership or control.

7.After the commission issues a written preliminary finding under subsection 6, the commission will allow the person subject to the preliminary finding thirty days in which to submit any information tending to demonstrate the lack of ownership or control. If after reviewing any information that is submitted, the commission is persuaded that the person is not an owner or controller, a written notice will be served to that effect. If, after reviewing any information that is submitted, the commission still finds that the person is an owner or controller, or no information is submitted within the thirty-day period, the commission will issue a written finding and enter that finding into AVS.

8.If the commission identifies a person as an owner or controller under subsection 7, that finding may be challenged using the provisions under section 69-05.2-10-07.

History: Effective April 1, 2013. 69-05.2-10-09. Permit applications - Ownership and control requirements for permittees after permit issuance.

1.Within thirty days of being issued a cessation order under subdivision b of subsection 1 of North Dakota Century Code section 38-14.1-28, the permittee must provide or update all the information required under section 69-05.2-06-01.

2.A permittee does not have to submit information under subsection 1 if a court of competent jurisdiction grants a stay of the cessation order and the stay remains in effect.

3.Within sixty days of any addition, departure, or change in position of any person identified in subdivision e of subsection 1 of section 69-05.2-06-01, the permittee must provide:

a.The date of any departure; and

b.The following for that person:

(1)The person's name, address, and phone number.

(2)The person's position title and relationship to the permittee, including percentage of ownership and location in the organizational structure.

(3)The date the person began functioning in that position.

History: Effective April 1, 2013; amended effective April 1, 2015.

Chapter 69-05.2-11 Permit Reviews, Revisions, and Renewals - Transfer, Sale, or Assignment of Rights Granted under Permits

N.D. Admin. Code 69-05.2-11 Permit Reviews, Revisions, and Renewals - Transfer, Sale, or Assignment of Rights Granted under Permits

CHAPTER 69-05.2-11

PERMIT REVIEWS, REVISIONS, AND RENEWALS - TRANSFER, SALE, OR ASSIGNMENT

OF RIGHTS GRANTED UNDER PERMITS

Section 69-05.2-11-01Review of Approved Permits 69-05.2-11-02Permit Revisions 69-05.2-11-03Permit Renewals - Applications 69-05.2-11-04Permit Renewals - Approval or Denial 69-05.2-11-05Permit Renewal - Limitation [Repealed] 69-05.2-11-06Transfer, Sale, or Assignment of Rights Granted Under Permit 69-05.2-11-07Successor in Interest to Permittee - New Permit 69-05.2-11-01. Review of approved permits.

1.The commission will review each permit at midterm or every five years, whichever is more frequent.

2.After permit review, the commission may require reasonable revision or modification to ensure compliance with North Dakota Century Code chapter 38-14.1 and this article.

3.Copies of the commission's decision will be sent to the permittee.

4.Any required permit revision or modification is subject to review under North Dakota Century Code sections 38-14.1-30 and 38-14.1-35.

5.The commission will review under chapter 69-05.2-32 any permit it has reason to believe was improvidently issued.

History: Effective August 1, 1980; amended effective May 1, 1990; January 1,1993. 69-05.2-11-02. Permit revisions.

1.A permit revision is required:

a.For changes from mining or reclamation methods approved in the permit.

b.For new operations not specified and approved in the existing permit.

c.When a new coal removal subarea of the existing permit area is proposed to be disturbed in accordance with the timing and sequence approved in the permit. The revision is considered a significant alteration to the mining and reclamation plan.

d.For acreage changes proposed to add or delete lands to or from an existing permit area under subsection 2 or 6.

e.When required under section 69-05.2-11-01.

f.In order to continue operation after the cancellation or material reduction of the liability insurance policy, performance bond, or other equivalent guarantee upon which the original permit was issued.

g.When an extension is requested under subsection 3 of North Dakota Century Code

section 38-14.1-12.

2.A permittee may request additional acreage [hectarage] if the commission considers the addition an incidental boundary change to the original permit area. This acreage [hectarage] will have the same term as the original permit.

3.Revision applications must be filed and approved before the date the permittee expects to change operations or initiate operations not previously approved.

4.A revision application must include:

a.A narrative describing the proposed revision.

b.Appropriate maps and legal descriptions, cross sections, graphs, construction details, procedures, revised reclamation plans, and other data which affirmatively demonstrate compliance with the applicable provisions of North Dakota Century Code sections 38-14.1-14, 38-14.1-16, and 38-14.1-24 and this article.

5.The commission will review and issue a decision on each revision application according to the following:

a.The commission will determine on the basis of the existing permit and the environmental resources of the permit area whether the proposed revision is a significant alteration or addition to the approved operations and reclamation plan. If the proposed revision is significant, the commission will notify the permittee in writing. A proposed revision found to be significant is subject to the notice, hearing, and procedural requirements of chapter 69-05.2-10 and North Dakota Century Code sections 38-14.1-18, 38-14.1-19, and 38-14.1-20. Insignificant revisions are not subject to these notice, hearing, and procedural requirements.

b.The commission will distribute copies of the application and supporting materials to the appropriate members of the advisory committee. Committee members shall forward their evaluation to the commission within twenty days of receipt.

c.The commission will issue a decision on each significant application in accordance with the time periods and procedures in section 69-05.2-05-01. The director of the commission's reclamation division will issue a decision on insignificant applications as soon as practicable.

d.No revision will be approved unless the permittee affirmatively demonstrates and written findings are made that all of the permit approval standards of subsection 6 of section 69-05.2-10-03, section 69-05.2-10-04, and subsection 3 of North Dakota Century Code

section 38-14.1-21 are met.

6.A permittee may file an application to withdraw any lands previously approved as a part of a permit area, except lands on which operations have commenced. The permittee shall demonstrate and certify that the proposed acreage [hectarage] to be deleted has not been affected by mining activities. Applications to delete undisturbed acreage [hectarage] are not subject to the public notice, procedural, and approval or denial standards of chapter 69-05.2-10 and North Dakota Century Code chapter 38-14.1.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990; May 1, 1992;

January 1, 1993. 69-05.2-11-03. Permit renewals - Applications.

1.Successive renewal is available only for lands within permit boundaries and for incidental boundary changes approved under section 69-05.2-11-02.

2.Obligations established under a surface coal mining and reclamation operations permit continue until completion of all operations, regardless of whether the authorization to conduct surface coal mining operations has expired or has been terminated, revoked, or suspended.

3.A permittee need not renew a permit for surface coal mining and reclamation operations if no surface coal mining operations remain to be conducted and only reclamation remains to be done.

4.Permits for areas released from all bond will not be renewed.

5.Renewal applications must be in a form required by the commission, and include:

a.The name and address of the permittee, the term of the renewal requested, the permit number, and a description of any acreage [hectarage] changes or other changes to the original permit application or prior renewal.

b.The reasons for requesting renewal.

c.A copy of the text of the newspaper notice prepared according to requirements in subsection 6. The applicant shall furnish proof of publication to the commission after the last required publication date.

d.Evidence that adequate liability insurance will be provided for the proposed renewal period.

e.Evidence that bond is sufficient and will continue in full force for the proposed renewal period.

6.Complete renewal applications are subject to the public notification requirements in section 69-05.2-10-01 and North Dakota Century Code section 38-14.1-18.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990; May 1, 1992; July 1, 1995. 69-05.2-11-04. Permit renewals - Approval or denial.

The commission will send copies of its decision to approve or deny a renewal to the applicant, any persons who filed objections or comments, and any persons who were parties to any informal conference held on the renewal.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-22 69-05.2-11-05. Permit renewal - Limitation.

Repealed effective May 1, 1990. 69-05.2-11-06. Transfer, sale, or assignment of rights granted under permit.

1.Any person seeking to succeed by transfer, sale, or assignment to the rights granted by a permit shall, prior to transfer, sale, or assignment:

a.Obtain the performance bond coverage of the original permittee by:

(1)Obtaining transfer of the original bond;

(2)Obtaining a written agreement with the original permittee and all subsequent successors in interest that the bond will continue in force and be supplemented as the commission requires. If agreement is reached, the commission may authorize release of bond in excess of that required by the agreement; or (3)Providing sufficient bond or acceptable alternative to cover the original permit in its entirety from inception to completion of reclamation operations.

b.Provide the commission with an application for approval of proposed transfer, sale, or assignment, including:

(1)The name and address of the existing permittee;

(2)The name and address of the person proposing to succeed by transfer, sale, or assignment and the name and address of that person's resident agent;

(3)A brief description of the proposed action requiring approval; and (4)The information required by sections 69-05.2-06-01, 69-05.2-06-02, and 69-05.2-06-03 and subdivisions c, e, and h of subsection 1 and subsection 3 of North Dakota Century Code section 38-14.1-14.

c.Obtain the commission's written approval for transfer, sale, or assignment ofrights, according to subsection 4.

2.The person applying for approval of transfer, sale, or assignment of rights granted by a permit shall advertise the filing of the application according to section 69-05.2-10-01 and North Dakota Century Code section 38-14.1-18, indicating the name and address of the applicant, the original permittee, the number and particular geographic location of the permit, and the address to which written comments may be sent.

3.Any person whose interests are or may be adversely affected, including the head of any local or state government agency, may submit written comments to thecommission on the application under the procedures in chapter 69-05.2-10.

4.The commission may, based on the applicant's compliance with subsections 1 and 2, grant written approval for the transfer, sale, or assignment of rights under a permit, if it first finds, in writing, that:

a.The applicant will conduct the operations in accordance with North Dakota Century Code

chapter 38-14.1 and this article.

b.The applicant has submitted a bond or other guarantee at least equivalent to the original.

c.The applicant will continue to conduct operations in compliance with the terms and conditions of the original permit, until it has obtained a new permit under section 69-05.2-11-07.

d.The applicant is eligible to receive a permit under section 69-05.2-10-03.

5.The commission will notify the permittee, successor, commentors, and the office of surface mining reclamation and enforcement of its findings.

6.The successor shall immediately notify the commission of the consummation of the transfer, assignment, or sale of permit rights.

History: Effective August 1, 1980; amended effective May 1, 1990; July 1,1995. 69-05.2-11-07. Successor in interest to permittee - New permit.

Any successor in interest seeking to change the mining or reclamation operations, or any of the terms or conditions of the original permit shall, within thirty days after succession is approved:

1.Apply for a new permit under chapters 69-05.2-05 through 69-05.2-09, if the change involves conducting operations outside the original permit area; or

2.Apply for a revised permit under section 69-05.2-11-02.

History: Effective August 1, 1980; amended effective May 1, 1990.

Chapter 69-05.2-12 Performance Bonds - Liability Insurance

N.D. Admin. Code 69-05.2-12 Performance Bonds - Liability Insurance

CHAPTER 69-05.2-12

PERFORMANCE BONDS - LIABILITY INSURANCE

Section 69-05.2-12-01Performance Bond - General Requirements 69-05.2-12-02Performance Bond - Form of the Performance Bond 69-05.2-12-03Performance Bond - Surety Bond 69-05.2-12-04Performance Bond - Collateral Bond 69-05.2-12-05Performance Bond - Self-Bond of Permit Applicant [Repealed] 69-05.2-12-05.1Performance Bond - Self-Bond of Permit Applicant 69-05.2-12-06Performance Bond - Replacement of Bonds 69-05.2-12-07Performance Bond - Determination of Bond Amount 69-05.2-12-08Performance Bond - Adjustment of Amount 69-05.2-12-09Performance Bond - Period of Liability 69-05.2-12-10Performance Bond - Request for Reduction [Repealed] 69-05.2-12-11Release of Performance Bond - Criteria for Bond Release 69-05.2-12-12Release of Performance Bond - Bond Release Application 69-05.2-12-13Release of Performance Bond - Location of Hearing 69-05.2-12-14Release of Performance Bond - Commission Inspection - Time of Release 69-05.2-12-15Release of Performance Bond - Objections to the Decision and Request for a Public Hearing 69-05.2-12-16Forfeiture of Performance Bond - Procedures 69-05.2-12-17Forfeiture of Performance Bond - Criteria [Repealed] 69-05.2-12-18Forfeiture of Performance Bond - Amount of Forfeiture 69-05.2-12-19Permit Revocation - Forfeiture of Performance Bond [Repealed] 69-05.2-12-20Liability Insurance 69-05.2-12-01. Performance bond - General requirements.

1.Permit applicants shall submit an estimate of bond for the entire permit area or that area specified in subsection 5.

2.The commission will review the estimated bond amount, approve or modify the required amount and notify the applicant.

3.Liability on the bond must cover all surface coal mining and reclamation operations to be conducted within the legally described area attached to the bond.

4.The applicant may file either the entire bond for the permit term or an incremental bond schedule and bond required for the first scheduled increment. Increments must be of sufficient size and configuration to provide for efficient reclamation operations should reclamation by the regulatory authority become necessary under section 69-05.2-12-18.

5.When the permittee elects to increment the amount of the bond, the permittee shall:

a.Furnish a legal description of each incremental area.

b.Furnish a schedule when each increment will require bond.

c.Furnish with the application the estimated costs for the commission to complete the reclamation plan for the initial increment.

d.Provide the estimated cost to complete the reclamation plan for the next increment at least ninety days prior to the expected starting date of mining.

6.The permittee will be notified of the commission's bond determination within thirty days of receipt of the permittee's reclamation cost estimate for the next bond increment.

7.The permittee shall not disturb the bond area prior to commission approval of the entire bond or incremental bond covering the area to be affected.

8.Once surface coal mining operations have begun within the bond area, adequate bond coverage must be in effect at all times. Except as provided by subsection 3 of section 69-05.2-12-03, operating without a bond is a violation of a permit condition.

9.The indemnity agreement for a collateral bond or self-bond must be executed according to the following:

a.If a corporation or rural electric cooperative:

(1)By two officers authorized to sign the agreement by a resolution of the board of directors, a copy of which must be provided; and (2)To the extent the history or assets of a parent organization are relied upon to make the required showings for a collateral bond or self-bond, by every parent organization at any tier.

b.If a partnership, each general partner and each parent organization or principal investor.

"Principal investor" or "parent organization" means anyone with a ten percent or more beneficial ownership interest, directly or indirectly, in the applicant.

c.If married, the permit applicant's spouse, if directly involved as part of the business on a regular basis or as an officer of the organization.

10.The name of each person who signs the indemnity agreement must be typed or printed beneath the signature. The agreement is binding jointly and severally on all who execute it.

11.The commission may allow the posting of more than one bond to guarantee specific phases of reclamation within the permit area provided the sum of phase bonds posted equals or exceeds the total amount required under sections 69-05.2-12-07 and 69-05.2-12-08. The scope of work to be guaranteed and the liability assumed under each phase bond must be specified in detail and approved by the commission before posting the bonds.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; May 1, 1992;

January 1, 1993; March 1, 2004. 69-05.2-12-02. Performance bond - Form of the performance bond.

The form for the performance bond shall be either:

1.A surety bond;

2.A collateral bond;

3.A self-bond; or

4.A combination of the above.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988. 69-05.2-12-03. Performance bond - Surety bond.

Surety bonds shall be subject to the conditions of subsections 6 and 7 of North Dakota Century Code section 38-14.1-16 and the following conditions:

1.The notice required by subsection 6 of North Dakota Century Code section 38-14.1-16 shall be by certified mail to the permittee and the commission and is not effective until received by both.

a.Cancellation is not effective for lands subject to bond coverage which are disturbed after receipt of notice, but prior to approval by the commission.

b.The commission may approve cancellation if a replacement bond is filed by the permittee prior to the cancellation date, or the permit is revised so that the surface coal mining operations approved under the permit are reduced to cover all the costs for completion of reclamation operations.

2.The bond must provide that:

a.The surety will promptly notify the permittee and the commission of any notice received or action filed alleging the insolvency or bankruptcy of the surety, or alleging any violations of regulatory requirements which could result in suspension or revocation of the surety's license to do business.

b.If the surety becomes unable to fulfill its obligations under the bond, it shall immediately notify the permittee and the commission.

c.The surety and permittee are jointly and severally liable.

d.The surety may not cancel the bond during the period of liability, except as provided in subsection 6 of North Dakota Century Code section 38-14.1-16 and subsection 1 of this

section.

3.Upon the incapacity of a surety by reason of bankruptcy, insolvency, or suspension or revocation of its license to do business in North Dakota, the permittee is deemed to be without bond coverage and shall, after receiving notice from the commission, substitute for that surety, a surety licensed to do business in North Dakota, or provide a substitute performance bond. If substitution is not made within thirty days, the commission may suspend the permit. If substitution is not made within ninety days, the commission will suspend the permit, and the operator shall cease surface mining activities and comply with section 69-05.2-13-11.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; May 1, 1990. 69-05.2-12-04. Performance bond - Collateral bond.

The guarantor of a collateral bond may be the permit applicant or a qualified third party.

1.Collateral bonds are subject to the following conditions:

a.All collateral must be kept in the commission's custody until authorized for release or replacement.

b.Collateral must be valued at market value.

c.Certificates of deposit must be assigned to the state, in writing, and upon the books of the issuer.

d.Except for certificates issued by the Bank of North Dakota, the commission will not accept an individual certificate in excess of one hundred thousand dollars, or the maximum amount insured by the federal deposit insurance corporation and the federal savings and loan insurance corporation, whichever is greater.

e.An issuer shall waive all rights of setoff or lien against the certificate.

f.The commission will accept only automatically renewable certificates of deposit.

g.The permit applicant shall deposit sufficient collateral to assure the commission will be able to liquidate the certificates prior to maturity, upon forfeiture, for the amount of the bond.

2.A collateral bond pledging a letter of credit may be approved by the commission subject to the following conditions:

a.The permit applicant has obtained prior commission approval for the bank issuing the letter of credit.

b.The commission may accept a letter of credit which is irrevocable for a term of at least one year if:

(1)The letter of credit is automatically renewable for additional terms unless the bank gives at least ninety days prior written notice to the commission and the permittee of its intent to terminate the letter of credit at the end of the current term.

(2)The commission has the right to draw upon the letter of credit before the end of its term and convert it into a cash collateral bond if the permittee fails to replace the letter of credit with other acceptable bond within thirty days of the bank's notice to terminate the credit.

c.The letter of credit must be payable to the commission in part or in full upon demand and receipt from the commission of a notice of forfeiture issued in accordance with sections 69-05.2-12-16 and 69-05.2-12-18 or demand for payment under paragraph 2 of subdivision b.

d.The commission will not accept letters of credit from a bank for a permittee, on permits held by that permittee, in excess of ten percent of the bank's total equity (stock, surplus capital, and retained earnings) as shown on a balance sheet certified by a certified public accountant. Alternatively, the bank may provide an excerpt from its most recent report of condition and income as prescribed by the federal financial institutions examination council that is filed with its primary federal regulator. At a minimum, the excerpt must include copies of the attestation page and the balance sheet schedule from the report and a written certification by a bank officer that the copies are true and correct and identify the federal bank regulatory agency and date that the report was filed. A copy of the bank's most recent balance sheet or the excerpt from the report of condition and income must be provided with the letter of credit. In addition, updated balance sheets that are certified by a bank officer as being true and correct must be submitted annually to the commission within ninety days after the close of the bank's fiscal year.

e.A letter of credit is governed by:

(1)The laws of the state of North Dakota.

(2)The current version of the uniform customs and practices for documentary credits, published by the international chamber of commerce.

f.Letters of credit shall provide that the bank, to the extent allowed by state and federal banking laws and regulations, will give prompt notice to the permittee and the commission of notices received or actions filed alleging the insolvency or bankruptcy of the bank or alleging violations of regulatory requirements that could result in suspension or revocation of the bank's charter or license to do business. In the event of actions which could result in suspension or revocation of the bank's charter or license, the commission has the right to draw upon the letter of credit before the end of its term and convert it into a cash collateral bond if the permittee fails to replace the letter of credit with a substitute bond within thirty days after receipt of such a notice from the commission. If a substitute bond is not filed and the commission is unable to draw on the letter of credit, the commission will suspend the permit and the operator shall cease surface coal mining activities and comply with section 69-05.2-13-11.

3.For a collateral bond the guarantor shall execute an indemnity agreement according to subsections 9 and 10 of section 69-05.2-12-01.

4.Persons with an interest in collateral posted as a bond, who desire notice of actions relating to the bond, shall request the notice in writing to the commission when collateral is offered.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; May 1, 1990;

March 1, 2004; October 1, 2014. 69-05.2-12-05. Performance bond - Self-bond of permit applicant. 69-05.2-12-05.1. Performance bond - Self-bond of permit applicant.

1.The commission may accept a self-bond if the following conditions are met:

a.The applicant designates an agent for service of process in the state.

b.The applicant has been in continuous operation as a business entity the five years preceding the application. The commission may allow a joint venture with less than five years of continuous operation if each member has been in continuous operation for the five years preceding the application.

c.The applicant submits financial information in sufficient detail to show one of the following:

(1)The applicant has a current rating of "A" or higher for its most recent bond issuance as issued by Moody's Investors Service, Standard and Poor's Corporation, or an equivalent rating by any other nationally recognized statistical rating organization, as defined and approved by the United States securities and exchange commission, that is acceptable to the commission.

(2)The applicant has a tangible net worth of at least ten million dollars, a ratio of total liabilities to net worth of 2.5 or less, and a ratio of current assets to current liabilities of 1.2 or greater.

(3)The applicant's fixed assets in the United States total at least twenty million dollars and the applicant has a ratio of total liabilities to net worth of 2.5 or less, and a ratio of current assets to current liabilities of 1.2 or greater.

d.The applicant submits:

(1)Financial statements for the last complete fiscal year audited by an independent certified public accountant, and a report containing the accountant's audit opinion or review opinion of the financial statements with no adverse opinion; and (2)Financial statements for completed quarters in the current fiscal year and additional information requested by the commission.

e."Tangible net worth" means net worth less intangibles.

2.The commission may accept a written guarantee for an applicant's self-bond from any third-party guarantor, whenever the applicant meets the provisions of subdivisions a, b, and d of subsection 1 and the guarantor meets the provisions of subdivisions a, b, c, and d of subsection 1. The commission may require the applicant to submit information pertaining to the provisions of subdivision c of subsection 1 in order to determine the financial capabilities of the applicant. The written guarantee must provide that:

a.If the applicant fails to complete the reclamation plan, the guarantor shall do so or the guarantor shall be liable under the indemnity agreement to provide to the commission funds, up to the bond amount, sufficient to complete the reclamation plan.

b.The guarantee must remain in force unless the guarantor sends notice of cancellation by certified mail to the applicant and to the commission at least ninety days in advance of the cancellation date, and the commission accepts the cancellation.

c.The cancellation may be accepted by the commission if the applicant obtains suitable replacement bond before the cancellation or if the covered lands have not been disturbed.

3.The total amount of the outstanding and proposed self-bonds for surface coal mining and reclamation operations may not exceed twenty-five percent of the applicant's or third-party guarantor's tangible net worth in the United States.

4.If the commission accepts a self-bond, an indemnity agreement executed by the applicant and any third-party guarantor must be submitted subject to the following:

a.The indemnity agreement is executed according to subsections 9 and 10 of section 69-05.2-12-01.

b.An affidavit is submitted certifying that such an agreement is valid under all applicable federal and state laws.

c.The guarantor provides a copy of the corporate authorization demonstrating that it may guarantee the self-bond and execute the indemnity agreement.

d.In the event of forfeiture, the applicant or third-party guarantor will complete the approved reclamation plan for the land in default or pay to the commission an amount necessary to complete the approved reclamation plan, not to exceed the bond amount.

5.Self-bonded permittees and third-party guarantors shall submit an update of the information required under subdivisions c and d of subsection 1 within ninety days after the close of their fiscal years.

6.If the financial conditions of the permittee or the third-party guarantor change so that the criteria of this section are not satisfied, the permittee shall notify the commission immediately and post an alternate bond in the same amount as the self-bond. If substitution is not made within thirty days, the commission may suspend the permit. If substitution is not made within ninety days, the commission shall suspend the permit and the operator shall cease surface mining activities and comply with section 69-05.2-13-11.

History: Effective May 1, 1988; amended effective January 1, 1993; January 1, 2009. 69-05.2-12-06. Performance bond - Replacement of bonds.

1.The commission may allow permittees to replace one form of bond with another, if the liability is transferred to the replacement bonds.

2.Bonds must remain in effect until the commission has approved replacement bonds.

3.Bond replacement is not a release of bond.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; January 1, 1993. 69-05.2-12-07. Performance bond - Determination of bond amount.

1.The amount of bond required is the estimated cost for the commission to perform the reclamation, restoration, and abatement work required.

2.The amount of bond required for each bonded area will:

a.Be determined by the commission;

b.Depend upon the requirements of the approved permit and reclamation plan;

c.Reflect the probable difficulty of reclamation considering topography, geology, hydrology, and revegetation potential; and

d.Consider the estimated cost submitted by the permit applicant.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; January 1, 1993. 69-05.2-12-08. Performance bond - Adjustment of amount.

1.The commission will review each bond consistent with section 69-05.2-11-01 or more frequently and notify the permittee of any proposed bond adjustment.

2.The commission will reevaluate bonds with the standards in section 69-05.2-12-07.

3.If the commission determines a bond adjustment is required, the permittee is entitled to an informal conference on the adjustment under chapter 69-05.2-10 and North Dakota Century Code section 38-14.1-19.

4.A permittee may request reduction of the required bond amount upon submission of evidence showing the permittee's operations or other circumstances will reduce the maximum estimated cost for the commission to complete reclamation. Bond reductions which involve undisturbed land or revision of the cost estimate of reclamation are not bond releases. A request for reduction in bond for reclamation work performed on disturbed areas is a request for bond release.

History: Effective August 1, 1980; amended effective May 1, 1988; January 1, 1993. 69-05.2-12-09. Performance bond - Period of liability.

1.The bond liability period is the time necessary to meet the requirements of North Dakota Century Code chapter 38-14.1, this article, and the permit and shall continue a minimum of ten years as specified in subsection 2 of section 69-05.2-22-07. The period of extended responsibility begins again whenever augmented seeding, fertilization, irrigation, or other work is required or conducted on the site prior to bond release, unless the management practice conducted is a part of normal management for that particular land use and is approved by the commission.

2.If the commission approves a long-term postmining land use of developed water resources, recreation, residential, industrial, or commercial, the commission may approve a liability period of less than ten years if the other requirements of this subsection and the requirements of subdivisions j and k of subsection 4 of section 69-05.2-22-07 are met prior to the final release of bond.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; July 1, 1995; May 1, 2001. 69-05.2-12-10. Performance bond - Request for reduction.

Repealed effective May 1, 1988. 69-05.2-12-11. Release of performance bond - Criteria for bond release.

1.The commission will not release any bond liability if the release would reduce the total remaining liability to less than that necessary for the commission to complete the required reclamation.

2.Release of bond for any combination of release stages identified in subsection 7 of North Dakota Century Code section 38-14.1-17 requires compliance with the reclamation standards established for each individual bond release stage.

History: Effective August 1, 1980; amended effective May 1, 1988; January 1, 1993. 69-05.2-12-12. Release of performance bond - Bond release application.

1.The permittee may request the commission release all or part of a bond for lands disturbed after July 1, 1975, as follows:

a.For lands disturbed between July 1, 1975, and June 30, 1979, the application must comply with subsection 1 of North Dakota Century Code section 38-14.1-17 and subsections 3 and 4. The criteria for release of all or part of the bond will be according to the reclamation requirements in effect at the time of the disturbance.

b.For lands disturbed after June 30, 1979, the application must comply with the requirements of this section and section 69-05.2-12-11.

2.The permittee may file bond release applications only at times and seasons that allow the commission to properly evaluate the completed reclamation operations. Each application for bond release shall include a notarized statement by the permittee which certifies that all applicable reclamation activities have been accomplished in accordance with this article, North Dakota Century Code chapter 38-14.1, and the approved reclamation plan.

3.Within thirty days after filing a request for bond release, the permittee shall submit a copy of the newspaper advertisement that was published as required by North Dakota Century Code

section 38-14.1-17. The advertisement published must include the permittee's name.

4.Lands for which the permittee requests final bond release must be legally described and delineated on maps of the permit area. Lands requested for partial bond release may be either legally described or otherwise clearly depicted and identified on maps of the permit area so the bond release tracts can be distinguished from other lands.

5.When the permittee requests a partial release of bond after regrading under subdivision a of subsection 7 of North Dakota Century Code section 38-14.1-17, the application must, unless waived by the commission, include surface profiles or topographic maps in accordance with

section 69-05.2-21-06.

6.When the permittee requests a partial release of bond after respreading suitable plant growth material under subdivision b of subsection 7 of North Dakota Century Code section 38-14.1-17, the application must include the thickness of the respread first lift and second lift suitable plant growth materials.

7.When the permittee requests a partial release of bond after vegetation has been established under subdivision c of subsection 7 of North Dakota Century Code section 38-14.1-17, the application must include:

a.The data collected, analyses conducted, and a narrative demonstrating vegetation establishment as required by subsection 3 of section 69-05.2-22-07.

b.Documentation that the lands to which the release would be applicable are not contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by section 69-05.2-16-04.

c.A discussion of how the provisions of a plan approved by the commission for the sound future management of any permanent impoundment by the permittee or landowner have been implemented.

8.When the permittee requests final bond release under subdivision d of subsection 7 of North Dakota Century Code section 38-14.1-17, the application must include:

a.The data collected, analyses conducted, and a narrative detailing compliance with subsection 4 of section 69-05.2-22-07.

b.The history of initial and subsequent seedings and fertilization, including mixtures and rates, appropriate soil tests, supplemental irrigation, or other management practices employed.

c.Documentation showing the reestablishment of essential hydrologic functions of alluvial valley floors.

d.If a premine water delivery system will not be replaced, the bond release application must address the requirements of subdivision b of subsection 90 of section 69-05.2-01-02.

9.When the permittee requests release of bond for any combination of release stages detailed in subsection 7 of North Dakota Century Code section 38-14.1-17, the application must contain all the information required at each bond release stage.

10.Requests for a reduction in bond amount for reclamation work performed according to subsection 4 of section 69-05.2-12-08 must include a detailed description of the work performed and a new reclamation cost estimate.

11.The commission may request any additional information necessary to evaluate the bond release application.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; May 1, 1992;

January 1, 1993; May 1, 2001; March 1, 2004; April 1, 2007. 69-05.2-12-13. Release of performance bond - Location of hearing.

Any formal hearing on the release of bond under subsection 2 of North Dakota Century Code

section 38-14.1-17 shall be held in the city nearest the permit area, or the state capitol, at the option of the objector. Any person having a valid legal interest in a proposed release from bond shall specify preference for the place of hearing in the request for a formal hearing.

History: Effective August 1, 1980; amended effective May 1, 1988. 69-05.2-12-14. Release of performance bond - Commission inspection - Time of release.

1.The surface owner, agent, or lessee will be notified by the commission of the bond release inspection and may participate in the inspection. If requested by a person with an interest in the bond release, the commission may arrange with the permittee access to the permit area for that person to gather relevant information within the time specified by subsection 3 of North Dakota Century Code section 38-14.1-17.

2.The commission will not release bond until the time to request a formal hearing has expired, or the commission has issued a final decision after a formal hearing.

History: Effective August 1, 1980; amended effective May 1, 1988; January 1, 1993. 69-05.2-12-15. Release of performance bond - Objections to the decision and request for a public hearing.

1.The permittee or any person having a valid legal interest in the decision to release all or part of the performance bond shall have the right to file written objections to the release and to request a formal hearing under subsection 3 of North Dakota Century Code section 38-14.1-30 within thirty days of the decision.

2.The location of the formal hearing shall be selected in accordance with section 69-05.2-12-13.

History: Effective August 1, 1980; amended effective May 1, 1988. 69-05.2-12-16. Forfeiture of performance bond - Procedures.

If forfeiture of the bond is required by section 69-05.2-12-18, the commission will:

1.Send notice by certified mail to the permittee and any surety of the commission's final decision to require forfeiture of the bond, the reasons for forfeiture, and the amount to be forfeited.

2.Advise the permittee and any surety of the permittee's right to request judicial review under North Dakota Century Code section 38-14.1-35.

3.Proceed to collect on the bond.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; January 1, 1993.

Law Implemented: NDCC 38-14.1-16, 38-14.1-30, 38-14.1-33, 38-14.1-35 69-05.2-12-17. Forfeiture of performance bond - Criteria. 69-05.2-12-18. Forfeiture of performance bond - Amount of forfeiture.

If the commission requires performance bond forfeiture, the total amount of all bonds for the bonded area for which liability is outstanding must be forfeited. Any bond proceeds remaining after reclamation is completed will be refunded. If there is more than one bond for a bonded area, including collateral bonds and self-bonds, any proceeds remaining after reclamation work is completed will be refunded proportionately.

History: Effective August 1, 1980; amended effective May 1, 1988; May 1, 1992.

Law Implemented: NDCC 38-14.1-16, 38-14.1-30 69-05.2-12-19. Permit revocation - Forfeiture of performance bond. 69-05.2-12-20. Liability insurance.

1.The permittee shall submit to the commission a certificate of public liability insurance in accordance with subsection 3 of North Dakota Century Code section 38-14.1-14. Minimum coverage for bodily injury and property damage must be one million dollars for each occurrence and two million dollars aggregate.

2.The policy must be maintained in full force during the life of the permit or any renewal, as well as the liability period necessary to complete all reclamation operations under this article.

History: Effective August 1, 1980; amended effective June 1, 1983; March 1, 1987; May 1, 1990;

May 1, 1992.

Law Implemented: NDCC 38-14.1-16, 38-14.1-30

Chapter 69-05.2-13 Performance Standards - General Requirements

N.D. Admin. Code 69-05.2-13 Performance Standards - General Requirements

CHAPTER 69-05.2-13

PERFORMANCE STANDARDS - GENERAL REQUIREMENTS

Section 69-05.2-13-01Performance Standards - General Requirements - Coal Production and Reclamation Fee Report [Repealed] 69-05.2-13-02Performance Standards - General Requirements - Annual Map 69-05.2-13-03Performance Standards - General Requirements - Authorizations to Operate 69-05.2-13-04Performance Standards - General Requirements - Signs and Markers 69-05.2-13-05Performance Standards - General Requirements - Minimize Disturbances - Best Technology Currently Available 69-05.2-13-06Performance Standards - General Requirements - Avoidance of Underground Mine Areas 69-05.2-13-07Performance Standards - General Requirements - Air Resources Protection 69-05.2-13-08Performance Standards - General Requirements - Protection of Fish, Wildlife, and Related Environmental Values 69-05.2-13-09Performance Standards - General Requirements - Slides and Other Damage 69-05.2-13-10Performance Standards - General Requirements - Cessation of Operations - Temporary 69-05.2-13-11Performance Standards - General Requirements - Cessation of Operations - Permanent 69-05.2-13-12Performance Standards - General Requirements - Auger Mining 69-05.2-13-13Performance Standards - General Requirements - Coal Preparation Plants not Located Within the Permit Area of a Mine 69-05.2-13-01. Performance standards - General requirements - Coal production and reclamation fee report.

Repealed effective May 1, 1999. 69-05.2-13-02. Performance standards - General requirements - Annual map.

The permittee shall submit two copies of an annual map to the commission for all permit areas by each March fifteenth. The scale must be 1:4,800 or other scale approved by the commission. The information must be reported for each calendar year until all bond has been released. The map, or maps if necessary, must clearly show the following and include a legend specifying the number of acres [hectares] in each category:

1.Each permit area and section line.

2.Activities during the year for each permit, including:

a.Acreage [hectarage] affected.

b.Acreage [hectarage] where suitable plant growth material removal operations have been completed.

c.Acreage [hectarage] where coal mining operations are completed and the contemporaneous reclamation requirement of subsection 14 of North Dakota Century Code section 38-14.1-24 has been initiated.

d.Acreage [hectarage] where grade approval has been obtained.

e.Acreage [hectarage] where suitable plant growth material redistribution operations have been completed.

f.Acreage [hectarage] planted where the ten-year revegetation period has been initiated.

g.Acreage [hectarage] where bond has been partially released and the stage of release.

h.Acreage [hectarage] where bond has been totally released.

3.Location of suitable plant growth material stockpiles. Supporting information must include ownership, date seeded, type of material in each stockpile (topsoil or subsoil), and estimated cubic yards [meters] for each stockpile.

4.Cumulative information on the mining and reclamation activities that have occurred within each permit area which include:

a.Affected acreage where topsoil must be replaced. The acreage specified on the map legend must be listed separately for each surface owner unless the surface owner has agreed to soil mixing as allowed by subsection 6 of section 69-05.2-15-04. The combined acreage for all surface owners who have agreed to soil mixing must be specified on the map legend.

b.Affected acreage where subsoil must be replaced. The acreage specified on the map legend must be listed separately for each surface owner unless the surface owner has agreed to soil mixing as allowed by subsection 6 of section 69-05.2-15-04. The combined acreage for all surface owners who have agreed to soil mixing must be specified on the map legend.

c.Acreage [hectarage] planted where the ten-year revegetation period has been initiated and the year of initiation.

d.Acreage [hectarage] where bond has been partially released and the stage of release.

e.A tabular listing of acreage [hectarage] where bond has been totally released.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990; June 1, 1994; June 1, 1997; May 1, 1999.

Law Implemented: NDCC 38-14.1-27 69-05.2-13-03. Performance standards - General requirements - Authorizations to operate.

A copy of all current permits, licenses, approved plans, or other authorizations to operate the mine must be available for inspection at or near the minesite.

Law Implemented: NDCC 38-14.1-27 69-05.2-13-04. Performance standards - General requirements - Signs and markers.

The permittee shall, at a minimum, comply with the following requirements for areas within a permit where a performance bond has been posted.

1.Specifications. Signs and markers must:

a.Be posted and maintained by the operator.

b.Be of a uniform design throughout the operation that can be easily seen and read.

c.Be made of durable material.

d.Conform to local ordinances and codes.

2.Duration of maintenance. Signs and markers must be maintained during all pertinent activities.

3.Mine and permit identification signs.

a.Identification signs must be displayed at access to the permit area from public roads.

b.Signs must show the name, business address, and telephone number of the operator and the identification number of the current permit authorizing surface mining activities.

c.Signs must be maintained until bond is released.

4.Perimeter markers. The perimeter of a permit area must be clearly marked before the beginning of surface mining activities.

5.Buffer zone markers. Buffer zones must be marked along their boundaries as required by

section 69-05.2-16-20.

6.Blasting signs. If blasting is conducted, the person who conducts these activities shall:

a.Conspicuously display signs reading "Blasting Area" along the edge of any blasting area that comes within fifty feet [15.24 meters] of any road within the permit area or within one hundred feet [30.48 meters] of any public road right of way.

b.Conspicuously flag, or post within the blasting area, the immediate vicinity of charged holes as required by section 69-05.2-17-05.

c.Place at all entrances to the permit area from public roads or highways conspicuous signs which state "Warning Explosives in Use!", which clearly explain the blast warning and all-clear signals and the marking of blast areas and charged holes.

7.Suitable plant growth material markers. Stockpiled suitable plant growth material must be clearly marked.

8.Sedimentation pond markers. The operator shall clearly mark the pool elevation that must be maintained for the pond to have sufficient storage capacity to contain the runoff from a ten-year, twenty-four-hour precipitation event (design event).

History: Effective August 1, 1980; amended effective May 1, 1988; May 1, 1990.

General Authority: NDCC 38-14.1-03, 38-14.1-24

Law Implemented: NDCC 38-14.1-24, 38-14.1-27 69-05.2-13-05. Performance standards - General requirements - Minimize disturbances - Best technology currently available.

All surface coal mining and reclamation operations must be conducted to minimize disturbances on lands where coal is not removed and utilize the best technology currently available.

Law Implemented: NDCC 38-14.1-03, 38-14.1-24 69-05.2-13-06. Performance standards - General requirements - Avoidance of underground mine areas.

Surface coal mining activities may not be conducted closer than five hundred feet [152.40 meters] of an underground mine, unless the activities result in improved resource recovery, abatement of water pollution, or elimination of hazards to public health and safety.

History: Effective August 1, 1980; amended effective May 1, 1990; January 1,1993. 69-05.2-13-07. Performance standards - General requirements - Air resources protection.

The permittee shall comply with all applicable air pollution control laws and rules of the department of environmental quality and stabilize and protect all surface areas.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990; June 1, 1997. 69-05.2-13-08. Performance standards - General requirements - Protection of fish, wildlife, and related environmental values.

1.The permittee shall affirmatively demonstrate how protection and enhancement of fish and wildlife resources will be achieved where practicable on the basis of information gathered and management plans developed under sections 69-05.2-08-15 and 69-05.2-09-17. The permittee shall submit a report to the commission with management plan results and data derived from the monitoring plan for the two previous calendar years by March fifteenth in even-numbered years.

2.No surface mining activity may be conducted which is likely to jeopardize the continued existence of endangered or threatened species listed by the secretary of the United States department of the interior or which is likely to result in the destruction or adverse modification of designated critical habitats of those species in violation of the Endangered Species Act of 1973, as amended [16 U.S.C. 1531 et seq.]. The permittee shall promptly report to the commission the presence in the permit area of any state-listed or federally listed endangered or threatened species of which the permittee becomes aware. Upon notification, the commission will consult the United States fish and wildlife service, the state game and fish department, and the operator, and then decide whether, and under what conditions, the operator may proceed.

3.No surface mining activity may be conducted in a manner that would result in the unlawful taking of a bald or golden eagle, its nest, or any of its eggs. The permittee shall promptly report to the commission the presence in the permit area of any bald or golden eagle, or bald or golden eagle nest or eggs, of which the permittee becomes aware. Upon notification, the commission will perform the consultation and decision process specified in subsection 2.

4.Nothing in this article authorizes the taking of an endangered or threatened species or a bald or golden eagle, its nest, or any of its eggs in violation of the Endangered Species Act of 1973, as amended [16 U.S.C. 1531 et seq.] or the Bald Eagle Protection Act, as amended [16 U.S.C. 668 et seq.].

5.The permittee shall ensure that the design and construction of electric powerlines and other transmission facilities used for or incidental to activities on the permit area follow the guidelines in Environmental Criteria for Electric Transmission Systems (United States department of the interior, United States department of agriculture (1970)), or in alternative guidance manuals approved by the commission. Design and construction of distribution lines must follow REA bulletin 61-10, Powerline Contacts by Eagles and Other Large Birds, or in alternative guidance manuals approved by the commission.

6.The permittee shall, to the extent possible using the best technology currently available:

a.Locate and operate haul and access roads, sedimentation ponds, diversions, stockpiles, and other structures to avoid or minimize impacts to important fish and wildlife species and their habitats and to other species protected by state or federal law.

b.Create no new barrier in known and important wildlife migration routes.

c.Fence, cover, or use other appropriate methods to exclude wildlife from ponds containing hazardous concentrations of toxic-forming materials.

d.Reclaim, enhance where practicable, or avoid disturbance to habitats of unusually high value for fish and wildlife.

e.Reclaim, enhance where practicable, or maintain natural riparian vegetation on the banks of streams, lakes, and other wetland areas.

f.Afford protection to aquatic communities by avoiding stream channels as required in

section 69-05.2-16-20 or reclaiming stream channels as required in section 69-05.2-16-07.

g.Not use pesticides in the area during surface mining and reclamation activities, unless specified in the operation and reclamation plan or approved by the commission on a case-by-case basis.

h.To the extent possible prevent, control, and suppress range, forest, and coal fires not approved by the commission as part of a management plan.

i.If fish and wildlife habitat is to be a primary or secondary postmining land use, the operator shall in addition to the requirements of chapter 69-05.2-22:

(1)Select plant species to be used on reclaimed areas, based on the following criteria:

(a)Their proven nutritional value for fish and wildlife.

(b)Their uses as cover for fish and wildlife.

(c)Their ability to support and enhance fish and wildlife habitat after bond release.

(2)Distribute plant groupings to maximize benefits to fish and wildlife. Plants should be grouped and distributed in a manner which optimizes edge effect, cover, and other benefits for fish and wildlife.

j.Where cropland is to be the postmining land use and where appropriate for wildlife and surface owner crop management practices, intersperse the fields with trees, hedges, or fence rows throughout the harvested area to break up large blocks of monoculture and to diversify habitat types for birds and other animals. Wetlands must be preserved when feasible or recreated consistent with the reclamation plan and the postmining land use.

k.Where the primary land use is to be residential, public service, or industrial, intersperse reclaimed lands with greenbelts utilizing species of grass, shrubs, and trees useful as food and cover for birds and small animals, unless the greenbelts are inconsistent with the approved postmining land use.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992;

January 1, 1993; June 1, 1994; May 1, 1999. 69-05.2-13-09. Performance standards - General requirements - Slides and other damage.

The operator shall promptly notify the commission and comply with required remedial measures whenever a slide occurs which may potentially adversely affect public property, health, safety, or the environment. 69-05.2-13-10. Performance standards - General requirements - Cessation of operations - Temporary.

1.Each permittee shall effectively secure surface facilities in temporarily inactive areas.

Temporary abandonment does not affect a permittee's obligation to comply with permit provisions.

2.Before temporarily ceasing or abandoning operations, the permittee shall submit for approval a notice of intention to that effect. The notice must include the exact number of acres [hectares] which will have been affected prior to cessation, the extent and kind of reclamation of those areas which will have been accomplished, and identify the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities that will continue during the cessation. 69-05.2-13-11. Performance standards - General requirements - Cessation of operations - Permanent.

The permittee shall:

1.Close, backfill, or otherwise permanently reclaim all affected areas where mining has permanently ceased in accordance with this article and the permit.

2.Remove equipment, structures, or other facilities not required for monitoring, unless approved by the commission as suitable for the postmining land use or environmental monitoring, and reclaim the affected land. 69-05.2-13-12. Performance standards - General requirements - Auger mining.

The operator shall:

1.Conduct auger mining to maximize the utilization and conservation of coal.

2.Conduct augering operations to:

a.Prevent subsidence to the extent technologically and economically feasible by one of the following:

(1)Backfilling the auger holes to assure the long-term stability of the site.

(2)Utilizing known technology to assure the long-term structural stability of the augered area; or

b.Provide for planned subsidence in a predictable and controlled manner.

3.Correct material damage caused to surface lands.

4.Either correct material damage resulting from subsidence caused to structures or facilities by repairing the damage, or compensate the owner of the structures or facilities in the full amount of the diminution in value. Repair includes rehabilitation, restoration, or replacement of damaged structures or facilities. Compensation may be accomplished by the purchase prior to mining of a noncancelable premium-prepaid insurance policy.

5.Seal auger holes with an impervious noncombustible material as soon as practicable.

6.Contain and treat auger hole drainage to meet water quality standards and effluent limitations of section 69-05.2-16-04.

7.Not auger within five hundred feet [152.4 meters] of any underground mine workings, except as approved under section 69-05.2-13-06.

History: Effective September 1, 1984; amended effective June 1, 1986; May 1,1990; May 1, 1992. 69-05.2-13-13. Performance standards - General requirements - Coal preparation plants not located within the permit area of a mine.

Each person who operates a coal preparation plant in connection with a coal mine but outside the permit area for a specific mine shall obtain a permit in accordance with section 69-05.2-09-19, obtain a bond in accordance with chapter 69-05.2-12, and comply with the following:

1.Signs and markers for coal preparation plants, coal processing waste disposal areas, and water treatment facilities must comply with section 69-05.2-13-04.

2.Stream channel diversions must comply with section 69-05.2-16-07.

3.Drainage from any disturbed areas related to coal preparation plants must comply with

chapter 69-05.2-16.

4.Permanent impoundments associated with coal preparation plants must comply with section 69-05.2-16-12. Dams constructed of or impounding coal processing waste must comply with

chapter 69-05.2-20.

5.Disposal of coal processing waste, noncoal mine waste, and excess spoil must comply with chapters 69-05.2-19 and 69-05.2-18, respectively.

6.Fish, wildlife, and related environmental values must be protected in accordance with section 69-05.2-13-08.

7.Support facilities related to coal preparation plants must comply with section 69-05.2-24-09.

8.Roads associated with coal preparation plants must comply with chapter 69-05.2-24.

9.Cessation of operations must be in accordance with sections 69-05.2-13-10 and 69-05.2-13-11.

10.Erosion and attendant air pollution must be controlled in accordance with sections 69-05.2-15-06 and 69-05.2-13-07, respectively.

11.Underground mine areas must be avoided in accordance with section 69-05.2-13-06.

12.Reclamation must follow proper suitable plant growth material handling, backfilling and grading, revegetation, and postmining land use procedures in accordance with chapters 69-05.2-15, 69-05.2-21, 69-05.2-22, and 69-05.2-23, respectively.

History: Effective January 1, 1987; amended effective May 1, 1990; May 1,1992.

Chapter 69-05.2-14 Performance Standards - Casing and Sealing of Drilled Holes

N.D. Admin. Code 69-05.2-14 Performance Standards - Casing and Sealing of Drilled Holes

CHAPTER 69-05.2-14

PERFORMANCE STANDARDS - CASING AND SEALING OF DRILLED HOLES

Section 69-05.2-14-01Performance Standards - Casing and Sealing of Drilled Holes - General Requirements 69-05.2-14-02Performance Standards - Casing and Sealing of Drilled Holes - Temporary 69-05.2-14-03Performance Standards - Casing and Sealing of Drilled Holes - Permanent 69-05.2-14-01. Performance standards - Casing and sealing of drilled holes - General requirements.

The operator shall case, seal, or otherwise manage each drill hole, borehole, or well within the permit area to prevent toxic drainage from entering ground or surface waters, minimize disturbance to the prevailing hydrologic balance, and ensure the safety of people, livestock, fish and wildlife, and machinery in the permit and adjacent areas. Unless approved for monitoring, the operator shall permanently close or otherwise acceptably manage openings uncovered or exposed by mining activities. Use of a drilled hole or borehole or monitoring well as a water well must meet the provisions of section 69-05.2-16-16. This section does not apply to holes drilled and used solely for blasting.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990. 69-05.2-14-02. Performance standards - Casing and sealing of drilled holes - Temporary.

Each drill hole or borehole identified in the approved permit application to be used to monitor ground water conditions shall be temporarily sealed before use and protected during use by barricades, or fences, or other protective devices approved by the commission. These devices must be periodically inspected and maintained in good operating condition by the permittee or operator.

History: Effective August 1, 1980; amended effective January 1, 1993. 69-05.2-14-03. Performance standards - Casing and sealing of drilled holes - Permanent.

When no longer needed for monitoring or other use approved by the commission upon a finding of no adverse environmental or health and safety effect, the operator shall permanently close drill holes and boreholes to prevent toxic drainage from entering ground or surface waters.

History: Effective August 1, 1980; amended effective May 1, 1990.

Chapter 69-05.2-15 Performance Standards - Suitable Plant Growth Material

N.D. Admin. Code 69-05.2-15 Performance Standards - Suitable Plant Growth Material

CHAPTER 69-05.2-15

PERFORMANCE STANDARDS - SUITABLE PLANT GROWTH MATERIAL

Section 69-05.2-15-01Performance Standards - Suitable Plant Growth Material - General Requirements [Repealed] 69-05.2-15-02Performance Standards - Suitable Plant Growth Material - Removal 69-05.2-15-03Performance Standards - Suitable Plant Growth Material - Storage and Protection 69-05.2-15-04Performance Standards - Suitable Plant Growth Material - Redistribution 69-05.2-15-05Performance Standards - Suitable Plant Growth Material - Nutrients and Soil Amendments 69-05.2-15-06Performance Standards - Suitable Plant Growth Material - Stabilizing Rills and Gullies 69-05.2-15-01. Performance standards - Suitable plant growth material - General requirements.

Repealed effective January 1, 1987. 69-05.2-15-02. Performance standards - Suitable plant growth material - Removal.

1.Timing. Suitable plant growth material must be removed after vegetative cover that would interfere with its use is cleared from the areas to be disturbed. To prevent suitable plant growth materials from becoming contaminated by other materials, all suitable plant growth materials to be saved must be separately removed and segregated as required by subsection 2 prior to any further surface disturbance.

2.Materials to be removed and saved.

a.The suitable plant growth materials, commonly referred to as topsoil (first lift suitable plant growth material) and subsoil (second lift suitable plant growth material) as identified by the soil survey required by section 69-05.2-08-10 must be removed and segregated in two separate operations, unless otherwise approved by the commission. The topsoil removal operation for an area must be completed before subsoil removal begins or before any other disturbances occur in that area. If use of other suitable strata is approved as a supplement to suitable plant growth material, all such materials to be saved must be removed and segregated. Further disturbances which significantly alter an area must not begin until the subsoil and other suitable strata removal operations for that area have been completed and approved by the commission. However, the commission may waive the approval of subsoil removal operations if the operator demonstrates, in a detailed soil removal plan, surplus subsoil is available and that subsoil to be removed has good and relatively uniform characteristics. A request for such a waiver must be included as part of a detailed soil removal plan or permit revision application that contains the necessary information. b.(1)All topsoil must be removed from all areas to be disturbed, except in situations as provided by subsection 4.

(2)Sufficient subsoil must be removed from all areas to be disturbed to satisfy the redistribution requirements of subsection 4 of section 69-05.2-15-04.

3.Materials to be removed in shallow suitable plant growth material situations. If the thickness of suitable plant growth materials averages less than six inches [15.24 centimeters], the commission may specify other suitable strata to be removed and treated as suitable plant growth material.

4.Suitable plant growth material removal will not be required for minor disturbances which occur at the site of small structures, such as power poles, signs, or fence lines.

5.Suitable plant growth material supplements and substitutes.

a.Topsoil supplements. Selected subsoil or other suitable strata may be used as a supplement to topsoil if the permittee or operator demonstrates that the resulting soil medium is equal to or more suitable for sustaining vegetation than the available topsoil.

This demonstration must include the vertical and areal extent of supplemental materials and determinations of pH, electrical conductivity, sodium adsorption ratio, percent coarse fragments, percent organic matter, texture, and other chemical or physical analyses as required by the commission. The operator may be required by the commission to include the results of any field trials or greenhouse tests to demonstrate the feasibility of using a mixture of such materials. The permittee or operator shall also demonstrate that the resulting medium is the best available soil medium in the permit area to support revegetation.

b.Subsoil supplements. The permittee or operator may be required to use other suitable strata to supplement subsoil materials if the commission determines additional suitable materials for spreading over affected areas are necessary to meet the redistribution requirements of subdivision a of subsection 4 of section 69-05.2-15-04, provided other suitable strata are available. Samples of the strata to be saved must be taken at sufficient locations to determine the areal extent of the suitable strata. The sampling locations must be approved by the commission. Chemical and physical analyses of the samples taken must include pH, electrical conductivity, sodium adsorption ratio, and textural analysis as required by the commission.

c.Subsoil substitutes. Selected overburden materials may be substituted for subsoil if the operator demonstrates to the commission that the resulting soil medium is equal to or more suitable than the available subsoil for sustaining vegetation. Overburden sampling and chemical and physical analyses must be provided by the operator as required by the commission.

d.Supplemental and substitute materials must be removed, segregated, and redistributed according to the applicable requirements for suitable plant growth material in this chapter.

History: Effective August 1, 1980; amended effective June 1, 1983; January 1, 1987; May 1, 1990;

January 1, 1993; July 1, 1995; May 1, 1999. 69-05.2-15-03. Performance standards - Suitable plant growth material - Storage and protection.

1.Suitable plant growth materials removed as required by section 69-05.2-15-02 must be stockpiled only when it is impractical to promptly redistribute such materials on regraded areas.

2.Suitable plant growth material to be stockpiled must be selectively placed on a stable area within the permit area in such a manner that minimizes any loss or deterioration of such material. The stockpiled materials must be protected from wind and water erosion, unnecessary compaction, and contaminants which lessen the capability of the materials to support vegetation. During the first normal period for favorable planting after stockpile placement, an effective cover of quick-growing nonnoxious plants must be established on the stockpiles. However, as an alternative to the establishment of a protective vegetative cover, the stockpiles may be mulched or otherwise protected using methods approved by the commission.

3.Unless approved by the commission, stockpiled suitable plant growth materials may not be moved until required for redistribution on a regraded area.

History: Effective August 1, 1980; amended effective January 1, 1987; May 1,1990. 69-05.2-15-04. Performance standards - Suitable plant growth material - Redistribution.

1.After final grading is approved under section 69-05.2-21-06 and before the suitable plant growth material is replaced, regraded land must be scarified or otherwise treated, if necessary, to eliminate slippage surfaces or to promote root penetration.

2.Subsoil must then be redistributed as approved by the commission in a manner that:

a.Achieves an approximate uniform thickness consistent with the postmining land use and meets the requirements of subsection 4.

b.Prevents excess compaction of the spoil and subsoil.

3.Following subsoil respreading, topsoil must be redistributed as approved by the commission in a manner that:

a.Achieves an approximate uniform thickness consistent with the postmining land use and meets the requirements of subsection 4.

b.Prevents excess compaction of the suitable plant growth materials.

4.Amount of suitable plant growth materials to be redistributed.

a.In areas where the graded spoil materials occur:

(1)All suitable plant growth material inventoried and removed according to the soil survey and any other suitable strata required to satisfy section 69-05.2-21-03 must be uniformly redistributed; or (2)The amount of redistributed suitable plant growth material must be based on the graded spoil characteristics as follows:

Suitable Plant Growth Material Redistribution Thickness Spoil PropertiesTotal Redistribution Thickness Texture Sodium Adsoprtion Ratio (SAR)

(Topsoil Plus Subsoil)

Average in Inches(Centimeters Medium*1224(61)

Course**1236(91) ***12-2036(91) ***2048(122) *Loam or finer **Sandy loam or coarser ***Not applicable (a)The minimum thickness of redistributed suitable plant growth material in any random location must be within six inches [15.24 centimeters] of the average thickness required for an area based on the graded spoil characteristics as determined by representative sampling. However, the commission may approve redistribution thicknesses less than those listed in the table if chemical and physical analyses and any available field trials, greenhouse test results or current research findings demonstrate that the overburden materials are equal to or more suitable than the subsoil for sustaining vegetation. In addition, the commission may approve a lesser redistribution thickness if an insufficient amount of material exists based on the results of the soil survey and the availability of other suitable strata pursuant to subdivision b of subsection 5 of

section 69-05.2-15-02.

(b)The texture, sodium adsorption ratio, and saturation percentage of the graded spoil materials will be determined by a commission evaluation of the premine overburden data, sample analyses of the graded spoil conducted by the operator, or by a combination of these methods.

b.The amount of redistributed suitable plant growth materials in associated disturbance areas where graded spoil materials do not occur must be based on the amount removed under subsection 2 of section 69-05.2-15-02.

5.Following the respreading of suitable plant growth materials, appropriate measures must be taken to protect the area from wind and water erosion.

6.The suitable plant growth material and other suitable strata and substitutes saved from property owned by one party must be respread within the boundaries of that property if the surface ownership of the permit area is split between two or more parties, unless the parties otherwise agree.

History: Effective August 1, 1980; amended effective June 1, 1983; January 1, 1987; May 1, 1990;

May 1, 1992; June 1, 1994; June 1, 1997; May 1, 1999. 69-05.2-15-05. Performance standards - Suitable plant growth material - Nutrients and soil amendments.

The operator shall apply necessary nutrients and soil amendments to the redistributed surface soil layer. Soil tests to identify nutrients, amendments, and rates must be performed by a qualified laboratory using standard methods.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990. 69-05.2-15-06. Performance standards - Suitable plant growth material - Stabilizing rills and gullies.

When rills and gullies deeper than nine inches [22.86 centimeters] form in areas that have been regraded and respread with suitable plant growth material, the operator shall fill, grade, or otherwise stabilize the rills and gullies and reseed or replant the area. The commission will require rills or gullies of lesser size to be filled, graded, or otherwise stabilized and the area reseeded or replanted if the rills or gullies would preclude the successful establishment of vegetation or the achievement of the postmining land use or if the rills or gullies may result in additional erosion and sedimentation.

History: Effective August 1, 1980; amended effective May 1, 1990.

Chapter 69-05.2-16 Performance Standards - Hydrologic Balance - General Requirements

N.D. Admin. Code 69-05.2-16 Performance Standards - Hydrologic Balance - General Requirements

CHAPTER 69-05.2-16

PERFORMANCE STANDARDS - HYDROLOGIC BALANCE - GENERAL REQUIREMENTS

Section 69-05.2-16-01Performance Standards - Hydrologic Balance - General Requirements 69-05.2-16-02Performance Standards - Hydrologic Balance - Compliance With State Department of Health Standards 69-05.2-16-03Performance Standards - Hydrologic Balance - Compliance With the Requirements of the State Engineer and Water Resource District 69-05.2-16-04Performance Standards - Hydrologic Balance - Water Quality Standards and Effluent Limitations 69-05.2-16-05Performance Standards - Hydrologic Balance - Surface Water Monitoring 69-05.2-16-06Performance Standards - Hydrologic Balance - Diversion of Overland Flow 69-05.2-16-07Performance Standards - Hydrologic Balance - Stream Channel Diversions 69-05.2-16-08Performance Standards - Hydrologic Balance - Sediment Control Measures 69-05.2-16-09Performance Standards - Hydrologic Balance - Sedimentation Ponds 69-05.2-16-10Performance Standards - Hydrologic Balance - Discharge Structures 69-05.2-16-11Performance Standards - Hydrologic Balance - Toxic Mine Drainage 69-05.2-16-12Performance Standards - Hydrologic Balance - Permanent and Temporary Impoundments 69-05.2-16-13Performance Standards - Hydrologic Balance - Ground Water Protection 69-05.2-16-14Performance Standards - Hydrologic Balance - Ground Water Monitoring 69-05.2-16-15Performance Standards - Hydrologic Balance - Protection of Ground Water Recharge Capacity 69-05.2-16-16Performance Standards - Hydrologic Balance - Transfer of Wells 69-05.2-16-17Performance Standards - Hydrologic Balance - Water Rights and Replacement 69-05.2-16-18Performance Standards - Hydrologic Balance - Discharge of Waters Into an Underground Mine 69-05.2-16-19Performance Standards - Hydrologic Balance - Postmining Rehabilitation of Sedimentation Ponds, Diversions, Impoundments, and Treatment Facilities 69-05.2-16-20Performance Standards - Hydrologic Balance - Stream Buffer Zones 69-05.2-16-01. Performance standards - Hydrologic balance - General requirements.

1.The operator shall conduct surface coal mining and reclamation operations to:

a.Minimize disturbance of the hydrologic balance within the permit and adjacent areas and prevent material damage outside the permit area.

b.Minimize changes in water quality and quantity, in the depth to ground water, and in the location of surface water drainage channels so that the approved postmining land use of the permit area is not adversely affected.

c.Minimize water pollution and, where necessary, use treatment methods to control water pollution.

(1)Emphasize mining and reclamation practices that prevent or minimize water pollution. The operator shall use changes in drainage flow in preference to water treatment facilities.

(2)Acceptable practices to control and minimize water pollution include:

(a)Stabilizing disturbed areas through land shaping.

(b)Diverting runoff.

(c)Achieving quickly germinating and growing stands of temporary vegetation.

(d)Regulating channel velocity.

(e)Lining drainage channels with rock or vegetation.

(f)Mulching.

(g)Selectively placing and sealing toxic-forming materials.

(h)Selectively placing waste materials in backfill areas.

(3)If the practices listed in paragraph 2 are not adequate, the operator shall operate and maintain the necessary water treatment facilities for as long as treatment is required.

2.Coal exploration activities which substantially disturb the land surface as determined by the state geologist under section 43-02-01-20 must comply with all applicable provisions of this

chapter. 69-05.2-16-02. Performance standards - Hydrologic balance - Compliance with department of environmental quality standards.

Runoff water and pit water discharge must meet the water quality requirements of the North Dakota department of environmental quality, as well as those of this article. The commission will not issue or revise a mining permit until the department of environmental quality has had an opportunity to review the applicable information and plans. No rights under the mining permit shall be exercised until the necessary department of environmental quality permits are obtained.

History: Effective August 1, 1980; amended effective May 1, 1990; June 1, 1997.

General Authority: NDCC 38-14.1-03, 38-14.1-42

Law Implemented: NDCC 38-14.1-21, 38-14.1-42 69-05.2-16-03. Performance standards - Hydrologic balance - Compliance with the requirements of the state engineer and water resource district.

Any water impoundment, diversion, structure, or drainage ditch built as part of an approved mining and reclamation plan must be constructed to meet the requirements of the North Dakota state engineer and the appropriate water resource district, as well as those of this article. The commission will not issue or revise a mining permit until the state engineer and the water resource district have had an opportunity to review the applicable information and plans. No rights under the mining permit shall be exercised until the necessary state engineer and water resource district permits are obtained.

General Authority: NDCC 38-14.1-03, 38-14.1-42

Law Implemented: NDCC 38-14.1-24, 38-14.1-42 69-05.2-16-04. Performance standards - Hydrologic balance - Water quality standards and effluent limitations.

1.The operator must comply with the following requirements:

a.All surface drainage from the disturbed area, including disturbed areas that have been graded, seeded, or planted, must be passed through a sedimentation pond, a series of sedimentation ponds, or other sediment control measures before leaving the permit area.

b.Sedimentation ponds and other sediment control measures must be maintained until removal is authorized by the commission and the disturbed area has been stabilized and revegetated. The ponds or other sediment control measures may not be removed sooner than two years after the last augmented seeding unless the last augmented seeding is a supplemental seeding into an established vegetation stand that is effectively controlling erosion.

c.The commission may allow the use of other sediment control measures for primary sediment control if:

(1)The disturbed drainage area within the total disturbed area is small, the disturbed areas have been regraded, respread with topsoil, and stabilized against erosion, or the department of environmental quality has approved the use of best management practices as the effluent limitation; and (2)The permittee or operator demonstrates that sedimentation ponds are not necessary for drainage from the disturbed drainage areas to meet the effluent limitations referenced in subdivision g and the applicable state water quality standards for downstream receiving waters.

d.For the purposes of this chapter only, "disturbed area" shall not include areas in which only diversion ditches, sedimentation ponds, or roads are installed in accordance with this article and the upstream area is not otherwise disturbed by the operator.

e.Sedimentation ponds and other sediment control measures must be constructed and installed according to the plans in the approved permit before beginning surface mining activities in the drainage area to be affected.

f.Mixed drainage from disturbed and undisturbed land must meet effluent limitations before it leaves the permit area.

g.Discharges of water from areas disturbed by surface mining activities must comply with all applicable state laws and rules and with the department of environmental quality effluent limitations authorized by North Dakota Century Code chapter 61-28.

h.For the purposes of this chapter, "other sediment control measures" means the use of the best technology currently available to meet applicable effluent limitations and, to the extent possible, minimize erosion and prevent additional contributions of sediment to streamflow or to runoff outside the permit area. These include sumps, check dams, berms, silt fences, bale dikes, sediment filters, riprap, mulches, and other measures to reduce runoff, trap sediment, or treat runoff water.

2.Adequate facilities must be installed, operated, and maintained to treat any water discharged from the disturbed area so that it complies with all state laws and rules and the effluent limitations of this section.

History: Effective August 1, 1980; amended effective September 1, 1984; January 1, 1987; May 1, 1990; January 1, 1993; June 1, 1997; March 1, 2004. 69-05.2-16-05. Performance standards - Hydrologic balance - Surface water monitoring.

1.Surface water monitoring must be conducted in accordance with the monitoring program and based on the probable hydrologic consequences determination submitted under section 69-05.2-08-04. The commission will approve the nature of data that relate to the hydrologic reclamation plan in section 69-05.2-09-12, frequency of collection, and determine reporting requirements.

a.For locations in surface water bodies, such as streams, lakes, and impoundments, monitoring must:

(1)Be adequate to measure accurately and record quantity and quality of discharges from the permit area and identify the extent to which mining affects water quality and quantity in the adjacent area. Water samples taken from all monitoring sites must be analyzed for the parameters specified in subdivision b of subsection 3 of

section 69-05.2-08-07. Results must be submitted quarterly to the commission.

(2)Be conducted to assure reliable test data according to existing standard procedures and analytical methods.

b.For point source discharges, monitoring must:

(1)Be conducted according to department of environmental quality standards.

(2)Result in notifying the commission within five days in any cases in which analytical results of the sample collections indicate noncompliance with a permit condition or applicable standard. Where a North Dakota pollutant discharge elimination system permit effluent limitation noncompliance has occurred, the operator or permittee shall forward the analytical results concurrently with the written notice of noncompliance.

(3)Result in periodic reports to the commission. The operator or permittee shall submit to the commission a copy of the completed North Dakota pollutant discharge elimination system report form along with analytical results from each sample taken during the reporting period. The reports must be filed on the same time schedule as that required by the North Dakota pollutant discharge elimination system permit. Any sample results that indicate a permit violation must be reported to the commission as specified in paragraph 2.

2.If violation of a permit condition occurs, the operator shall, if appropriate, immediately take the actions provided for in subdivision a of subsection 3 of section 69-05.2-10-05 and subsection 2 of section 69-05.2-09-12.

3.After disturbed areas have been regraded and stabilized, the permittee shall continue to monitor surface water flow and quality within the permit and adjacent areas. Data from this monitoring may be used to demonstrate that the quality and quantity of runoff without treatment is consistent with the requirements to minimize disturbance to the prevailing hydrologic balance and attain the approved postmining land use. These data may also provide a basis for commission approval to remove water quality or flow control systems.

4.Equipment, structures, and other devices necessary to measure and sample accurately the quality and quantity of surface water discharges from the disturbed area must be properly installed, maintained, and operated and must be removed when no longer required.

History: Effective August 1, 1980; amended effective May 1, 1990; June 1, 1997; May 1, 2001;

March 1, 2004.

Law Implemented: NDCC 38-14.1-27 69-05.2-16-06. Performance standards - Hydrologic balance - Diversion of overland flow.

Overland flow, including flow through litter, shallow ground water flow from undisturbed areas, and flow in ephemeral streams, may be diverted from disturbed areas by temporary or permanent diversions, if required or approved by the commission. The following requirements must be met for diversions and collection drains used to transport water into treatment facilities and for diversions of overland and shallow ground water flow and ephemeral streams:

1.Temporary diversions must be constructed to pass safely the peak runoff from a ten-year, twenty-four-hour precipitation event, or a larger event as specified by the commission. A two-year recurrence interval may be used for designing collection drains used to transport water into treatment facilities if:

a.The diversion will be used for less than one year; or

b.The commission determines that the design integrity of the water management plan is maintained during a ten-year, twenty-four-hour design storm.

2.Permanent diversions must be constructed to pass safely the peak runoff from a ten-year, twenty-four-hour precipitation event; however, where necessary to protect fills and property and to avoid danger to public health and safety, permanent diversions must be constructed to pass safely the peak runoff from a one-hundred year, twenty-four-hour precipitation event, or a larger event as specified by the commission. Permanent diversions must be constructed with gently sloping banks stabilized by vegetation. Asphalt, concrete, or other similar linings may be used only when approved by the commission to prevent seepage or to provide stability.

3.Diversions must be designed, constructed, and maintained to prevent additional contributions of suspended solids to streamflow and to runoff outside the permit area to the extent possible using the best technology currently available. Appropriate sediment control measures for these diversions may include maintenance of appropriate gradients, channel lining, revegetation, roughness structures, and detention basins.

4.No diversion shall be located to increase the potential for landslides. No diversion shall be constructed on existing landslides, unless approved by the commission.

5.When no longer needed, each temporary diversion must be removed and the affected land reclaimed. The operator shall reestablish ephemeral stream channels to a longitudinal profile and cross section that approximate premining channel characteristics.

6.Diversion design must incorporate the following:

a.Design channel lining using standard engineering practices to pass safely the design velocities.

b.Freeboard must be no less than three-tenths of a foot [9.14 centimeters]. Design freeboard may be increased where the area protected is a critical area as determined by the commission.

c.Protection for transition of flows and for critical areas such as swales and curves.

d.Install energy dissipators when necessary at discharge points, where diversions intersect with natural streams and exit velocity of the diversion ditch flow is greater than that of the receiving stream.

e.Dispose of excess excavated material not necessary for diversion channel geometry or channel regrading according to chapter 69-05.2-18.

f.Handle suitable plant growth material in compliance with chapter 69-05.2-15.

7.Diversions may not be constructed or operated to divert water into underground mines or an abandoned surface mine without commission approval under section 69-05.2-16-18.

History: Effective August 1, 1980; amended effective May 1, 1990; January 1, 1993. 69-05.2-16-07. Performance standards - Hydrologic balance - Stream channel diversions.

1.Flow from perennial and intermittent streams within the permit area may be diverted, if the diversions:

a.Are approved by the commission after making the findings in section 69-05.2-16-20;

b.Comply with other requirements of this chapter;

c.Comply with local and state laws and regulations; and

d.Are certified by a qualified registered professional engineer as being designed and constructed as required by this section.

2.When streamflow diversion is allowed, the diversion must be designed, constructed, and removed as follows:

a.The longitudinal profile of the stream, the channel, and the floodplain must be designed and constructed to remain stable and to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow or to runoff outside the permit area. These contributions may not exceed the limits established by state law. Erosion control structures such as channel lining structures, retention basins, and artificial channel roughness structures may be used in diversions only when approved by the commission. These structures may be approved for permanent diversions only where they are stable and will require infrequent maintenance.

b.The combination of channel, bank, and floodplain configurations must be adequate to pass safely the peak runoff of a ten-year, twenty-four-hour precipitation event for temporary diversions, a one-hundred-year, twenty-four-hour precipitation event for permanent diversions, or larger events specified by the commission. However, the capacity of the channel itself should be at least equal to the capacity of the unmodified stream channel immediately upstream and downstream of the diversion.

3.When no longer needed, all temporary stream channel diversions must be removed and the affected land reclaimed. At the time diversions are removed, downstream water treatment facilities previously protected by the diversion must be modified or removed to prevent overtopping or failure of the facilities. This requirement does not relieve the operator from maintaining a water treatment facility otherwise required under this chapter or the permit.

4.When permanent diversions are constructed or natural stream channels restored after being temporarily diverted, the operator shall:

a.Restore, enhance where practicable, or maintain natural riparian vegetation on the banks of the stream.

b.Establish or restore the stream to its natural meandering shape at an environmentally acceptable gradient, as approved by the commission.

c.Establish or restore the stream to a longitudinal profile and cross section, including aquatic habitats (usually a pattern of riffles, pools, and drops rather than uniform depth) that approximate premining stream channel characteristics.

Law Implemented: NDCC 38-14.1-24, 38-14.1-42 69-05.2-16-08. Performance standards - Hydrologic balance - Sediment control measures.

1.Appropriate sediment control measures must be designed, constructed, and maintained using the best technology currently available to:

a.Prevent, to the extent possible, additional contributions of sediment to streamflow or to runoff outside the permit area.

b.Meet the more stringent of applicable state effluent limitations.

c.Minimize erosion to the extent possible.

d.Minimize the deposition of sediment on undisturbed areas.

2.Sediment control measures include practices carried out within and adjacent to the disturbed area. The sedimentation storage capacity of practices in and downstream from the disturbed area must reflect the degree to which successful mining and reclamation techniques are applied to reduce erosion and control sediment. Sediment control measures consist of the utilization of proper mining and reclamation methods and sediment control practices, singly or in combination. Sediment control methods include:

a.Disturbing the smallest practicable area at any one time during the mining operation through progressive backfilling, grading, and prompt revegetation.

b.Stabilizing the backfill material to promote a reduction in the rate and volume of runoff.

c.Retaining sediment within disturbed areas.

d.Diverting runoff away from disturbed areas.

e.Diverting runoff using protected channels or pipes through disturbed areas so as not to cause additional erosion.

f.Using straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment.

g.Treating with chemicals. 69-05.2-16-09. Performance standards - Hydrologic balance - Sedimentation ponds.

1.General requirements. Sedimentation ponds must be used individually or in series and:

a.Be constructed before any disturbance of the undisturbed area to be drained into the pond.

b.Be located as near as possible to the disturbed area and out of perennial streams, unless approved by the commission.

c.Meet all the criteria of this section.

2.Sediment storage volume. Sedimentation ponds must provide adequate sediment storage volume. Sediment storage volume must be determined using the universal soil loss equation, gully erosion rates, and the sediment delivery ratio converted to sediment volume, using either the sediment density or other empirical methods derived from regional sediment pond studies if approved by the commission.

3.Detention time. Sedimentation ponds must provide the required theoretical detention time for the water inflow or runoff entering the pond from a ten-year, twenty-four-hour precipitation event (design event). The theoretical detention time must be sufficient to achieve and maintain applicable effluent standards. The calculated theoretical detention time and all supporting materials must be included in the permit application.

4.Dewatering. The stored water must be removed by a nonclogging dewatering device or a conduit spillway approved by the commission, and have a discharge rate to achieve and maintain the required theoretical detention time. The dewatering device may not be lower than the maximum elevation of the sediment storage volume.

5.Each operator shall design, construct, and maintain sedimentation ponds to prevent short circuiting to the extent possible.

6.The design, construction, and maintenance of a sedimentation pond or other sediment control measures do not relieve the operator from compliance with applicable effluent limitations.

7.For sedimentation ponds designed to contain the runoff from a ten-year, twenty-four-hour precipitation event (design event), there must be no spillway outflow as a result of runoff from the design event or lesser runoff events, unless multiple runoff events occur before the pond can be dewatered in accordance with approved plans in the permit.

8.Sediment must be removed from sedimentation ponds on a periodic basis in order to maintain an adequate storage volume for the design event.

9.An appropriate combination of principal and emergency spillways or a single spillway must be provided to safely discharge the runoff from a twenty-five-year, six-hour precipitation event for a temporary impoundment, a fifty-year, six-hour precipitation event for a permanent impoundment, or a larger event specified by the commission. The spillways must be capable of safely discharging the required event when the impoundment is at high water elevation.

Commission approval of open channel spillway grades and allowable velocities must be obtained and velocities must be nonerosive. Earth or grass lined spillways may be used only where sustained flows are not expected.

10.The minimum elevation at the top of the settled embankment must be one foot [30.48 centimeters] above the water surface in the pond with the emergency spillway flowing at design depth. For embankments subject to settlement, this minimum elevation requirement applies at all times.

11.The constructed height of the dam must be increased a minimum of five percent over the design height to allow for settlement, unless it has been demonstrated to the commission that the material used and the design will ensure against settlement.

12.The minimum top width of the embankment may not be less than the quotient of (H+35)/5, where H is the height, in feet, or (H+10.7)/5, where H is the height, in meters, of the embankment as measured from the upstream toe of the embankment.

13.The upstream side slope of the settled embankment may not be steeper than a horizontal to vertical ratio of 3:1 and the downstream side slope of the settled embankment may not be steeper than a horizontal to vertical ratio of 2:1.

14.The foundation area must be cleared of all organic matter, all surfaces sloped to no steeper than a horizontal to vertical ratio of 1:1, and the entire foundation surface scarified. Cutoff trenches must be installed if necessary to ensure stability.

15.The fill material must be free of sod, large roots, other large pieces of vegetative matter, and frozen soil, and in no case shall coal processing waste be used.

16.The placing and spreading of fill material must be started at the lowest point of the foundation.

The fill must be brought up in horizontal layers in the thicknesses required to facilitate compaction and meet the design requirements of this section. Fill adjacent to structures, pipe conduits, and drainfill or antiseep collars must be compacted to a density equal to that of the surrounding fill by hand tamping or by using manually directed power tampers or plate vibrators. Compaction must be conducted as specified in the approved design. In lieu of the specific design requirements of this subsection and subsections 11 through 14, the operator may demonstrate that the design of the structure has a minimum static safety factor of 1.3 for a normal pool with steady state seepage saturation conditions.

17.If a proposed impoundment can meet the size and other criteria of 30 CFR 77.216, the following additional requirements must be met:

a.An appropriate combination of principal and emergency spillways must be provided to safely discharge the runoff from a one-hundred-year, six-hour precipitation event, or a larger event as specified by the commission.

b.The embankment must be designed and constructed with a seismic safety factor of 1.2 and a static safety factor of at least 1.5 for a normal pool with steady state seepage saturation conditions, or a higher safety factor as designated by the commission.

c.Appropriate barriers must be provided to control seepage along conduits that extend through the embankment.

d.The criteria of the mine safety and health administration as published in 30 CFR 77.216 must be met.

18.If an impoundment meets the class B or C criteria for dams (those located where failure would be expected to cause loss of life or serious property damage) in the United States department of agriculture, natural resource conservation service technical release no. 60 (TR-60), Earth Dams and Reservoirs, 1985, the following apply:

a.The emergency spillway must comply with freeboard hydrograph criteria found in the minimum emergency spillway hydrologic criteria table in TR-60, or greater event specified by the commission.

b.The embankment must be designed and constructed with a seismic safety factor of 1.2 and a static safety factor of at least 1.5 for a normal pool with steady state seepage saturation conditions, or a higher safety factor as designated by the commission.

c.Foundation testing, as well as any necessary laboratory testing of foundation material, must be performed to determine design requirements for foundation stability.

d.Appropriate barriers must be provided to control seepage along conduits that extend through the embankment.

19.Impoundment inspections.

a.A registered professional engineer, or other specialist under the direction of a registered professional engineer, shall inspect each impoundment as required under subdivisions b, c, and d. The registered professional engineer and specialist must be experienced in the construction of impoundments.

b.Inspections must be made regularly during construction. Reports for each inspection during construction must be prepared and maintained at or near the minesite.

c.After impoundment construction is complete, the registered professional engineer shall promptly provide the commission a certified report that the impoundment has been inspected during construction on a regular basis and it has been constructed as designed and according to the approved plan and this chapter. The report must include a summary of the construction inspections, final storage capacity, and if applicable, a discussion of any deviations from the approved plan.

d.After impoundments are operational, they shall be inspected at least yearly until removal of the structure or release of the performance bond. A registered professional engineer shall promptly provide the commission with an annual impoundment inspection report addressing any appearance of instability, structural weakness, or other hazardous conditions, depth and elevation of any impounded water, existing storage capacity, any existing or required monitoring procedures and instrumentation, and any other aspects of the structure affecting stability. A single report can address more than one impoundment; however, the condition of each impoundment must be noted separately.

e.A copy of the inspection reports must be maintained at or near the minesite.

20.The embankment, including the surrounding areas and diversion ditches disturbed or created by construction, must be stabilized with respect to erosion and sudden drawdown by a vegetative cover or other means immediately after the embankment is completed. The active upstream face where water will be impounded may be riprapped or otherwise stabilized to protect the embankment from erosion and sudden drawdown. Areas where the reestablishment of vegetation is not successful or where rills and gullies develop must be repaired and revegetated according to section 69-05.2-15-06.

21.In addition to the requirements of subsection 19, all impoundments meeting the criteria of subsections 17 and 18 must be examined according to 30 CFR 77.216-3. Other impoundments must be examined at least quarterly by a qualified person for appearance of erosion, structural weakness, and other hazardous conditions. The annual inspection required by subsection 19 will be considered one of the examinations required by this subsection.

22.Plans for any enlargement, reduction, reconstruction, or other modification of dams or impoundments must be submitted to the commission. Commission approval of these plans is required before modification begins, unless a modification is necessary to eliminate a hazard to public health, safety, or the environment.

23.Sedimentation ponds or other sediment control measures may not be removed until authorized by the commission and the disturbed area has been stabilized and revegetated.

The ponds or other measures may not be removed sooner than two years after the last augmented seeding unless the last augmented seeding is a supplemental seeding into an established vegetation stand that is effectively controlling erosion. When the pond is removed, the affected land must be reclaimed, unless the pond has been approved by the commission for retention. If the commission approves retention, the pond must meet all the requirements for permanent impoundments of section 69-05.2-16-12.

History: Effective August 1, 1980; amended effective June 1, 1983; June 1, 1986; January 1, 1987;

May 1, 1990; May 1, 1992; June 1, 1994; July 1, 1995; May 1, 1999; March 1, 2004; April 1, 2007. 69-05.2-16-10. Performance standards - Hydrologic balance - Discharge structures.

Discharges from sedimentation ponds, permanent and temporary impoundments, coal processing waste dams and embankments, and diversions must be controlled, where necessary using energy dissipators, riprap channels, surge ponds, and other devices to reduce erosion, prevent deepening or enlargement of stream channels and minimize disturbances to the hydrologic balance. Discharge structures must be designed according to standard engineering design procedures. 69-05.2-16-11. Performance standards - Hydrologic balance - Toxic mine drainage.

The discharge of toxic mine drainage into ground and surface water must be avoided by:

1.Identifying, burying, and treating where necessary, spoil which, in the judgment of the commission, may be detrimental to vegetation or water quality.

2.Preventing water from coming into contact with spoil material that causes toxic mine drainage according to section 69-05.2-21-03 and other measures as required by the commission.

3.Burying or otherwise treating all spoil that causes toxic mine drainage within thirty days after it is first exposed, or within a lesser period required by the commission, except that temporary storage may be approved upon a finding that burial or treatment within thirty days is not feasible and will not result in any material risk of water pollution or other environmental damage. Storage must be limited to the period until burial or treatment first becomes feasible.

The spoil must be placed on impermeable material and protected from erosion and contact with surface water. 69-05.2-16-12. Performance standards - Hydrologic balance - Permanent and temporary impoundments.

1.In addition to the standards for permanent impoundments in subsection 7 of North Dakota Century Code section 38-14.1-24, the design, construction, and maintenance of structures in which water is impounded by a dam must utilize the best technology currently available and meet the requirements of subsections 9 through 21 of section 69-05.2-16-09 and the North Dakota Dam Design Handbook.

2.Temporary impoundments in which the water is impounded by a dam must meet the requirements of subsections 9 through 22 of section 69-05.2-16-09.

3.Excavations that will impound water during or after the mining operation must have stable perimeter slopes not steeper than 1v:2h. Slopes must be designed to be stable, even if flatter side slopes are required. Where surface runoff enters the impoundment area, the side slope must be protected against erosion.

4.All dams and embankments must be routinely maintained during mining operations.

Vegetative growth must be cut where necessary to facilitate inspection and repairs. Ditches and spillways must be cleaned. Any combustible material present on the surface, other than material such as mulch or dry vegetation used for surface stability, must be removed and all other appropriate maintenance procedures followed.

5.If any examination or inspection discloses a potential hazard, the operator shall promptly inform the commission of the findings and the emergency procedures for public protection and remedial action. If adequate procedures cannot be formulated or implemented, the commission must be notified immediately. The commission will then notify the appropriate agencies that other emergency procedures are required to protect the public.

History: Effective August 1, 1980; amended effective May 1, 1990; May 1, 1992; January 1, 1993. 69-05.2-16-13. Performance standards - Hydrologic balance - Ground water protection.

1.Backfilled materials must be placed to minimize contamination of ground water systems with toxic or otherwise harmful mine drainage, minimize adverse effects on ground water flow and quality, minimize offsite effects, and support approved postmining land uses.

2.To control the effects of mine drainage, pits, cuts, and other mine excavations or disturbances must be located, designed, constructed, and utilized to prevent or control discharge of toxic or otherwise harmful mine drainage waters into ground water systems and prevent adverse impacts on those systems or on approved postmining land uses. 69-05.2-16-14. Performance standards - Hydrologic balance - Ground water monitoring.

1.The ground water monitoring plan must be based on the probable hydrologic consequences determination and conducted according to the monitoring program submitted under section 69-05.2-09-12 and approved by the commission. Ground water levels, infiltration rates, subsurface flow and storage characteristics, and the quality of ground water must be monitored to determine the effects of surface mining activities on the recharge capacity of reclaimed lands and on the quantity and quality of water in ground water systems in the permit area and adjacent area. Ground water monitoring systems must be designed and maintained to allow the commission to substantiate the determination of cumulative impacts of all surface mining activities on the ground water hydrology of the permit and adjacent areas.

2.When surface mining activities may affect the ground water systems which serve as aquifers that ensure the hydrologic balance of water use on or off the mine area, ground water levels and ground water quality must be periodically monitored. Monitoring must include measurements from a sufficient number of wells and mineralogical and chemical analyses of aquifer, overburden, and spoil that are adequate to reflect changes in ground water quantity and quality resulting from those activities. Monitoring must be adequate to plan for modification of surface mining activities, if necessary, to minimize disturbance of the prevailing hydrologic balance.

3.Ground water monitoring data must be submitted to the commission every three months or more frequently as prescribed by the commission. Monitoring reports must include analytical results from each sample taken during the reporting period. The operator shall review the data annually or more frequently if required by the commission. Changes observed in the monitored aquifers in the permit or adjacent areas must be described and interpreted in the monitoring report as to their significance and possible effect on any water supplies. When the analysis of any ground water sample indicates noncompliance with the permit conditions, the operator shall promptly notify the commission and immediately take the actions provided for in subdivision a of subsection 3 of section 69-05.2-10-05 and subsection 2 of section 69-05.2-09-12.

4.As specified and approved by the commission, the operator or permittee shall conduct additional hydrologic tests, including drilling, infiltration tests, and aquifer tests, and submit the results to the commission to demonstrate compliance with this chapter.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992.

Law Implemented: NDCC 38-14.1-24, 38-14.1-27 69-05.2-16-15. Performance standards - Hydrologic balance - Protection of ground water recharge capacity.

Surface mining activities must restore approximate premining recharge capacity, through restoration of the capability of the reclaimed areas as a whole, excluding coal processing waste and underground development waste disposal areas and fills, to a condition which:

1.Supports the approved postmining land use;

2.Minimizes disturbances to the prevailing hydrologic balance in the mine plan area and in adjacent areas; and

3.Provides a rate of recharge that approximates the premining recharge rate.

Law Implemented: NDCC 38-14.1-24, 38-14.1-27 69-05.2-16-16. Performance standards - Hydrologic balance - Transfer of wells.

1.An exploratory or monitoring well may be transferred by the permittee for further use as a water well with the prior approval of the commission. The permittee and the surface owner shall jointly submit a written request to the commission for that approval.

2.Upon an approved transfer of a well, the transferee shall:

a.Assume primary liability for damages to persons or property from the well.

b.Plug the well when necessary, but in no case later than abandonment of the well.

c.Assume primary responsibility for compliance with chapter 69-05.2-14 with respect to the well.

3.Upon an approved transfer of a well, the transferor shall be secondarily liable for the transferee's obligations under subsection 2, until release of the bond or other equivalent guarantee required by chapter 69-05.2-12, for the area in which the well is located. 69-05.2-16-17. Performance standards - Hydrologic balance - Water rights and replacement.

A permittee shall replace the water supply of an owner of interest in real property who obtains all or

part of the owner's supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source, where the water supply has been affected by contamination, diminution, or interruption proximately resulting from the surface mining activities.

History: Effective August 1, 1980. 69-05.2-16-18. Performance standards - Hydrologic balance - Discharge of waters into an underground mine.

Surface water must not be diverted or otherwise discharged into underground mine workings or abandoned surface mines, unless the operator or permittee demonstrates to the commission that the diversion or discharge will:

1.Minimize disturbance to the hydrologic balance on the permit area, prevent material damage outside the permit area, and otherwise eliminate public hazards resulting from surface mining activities.

2.Not cause the discharge to result in or contribute to a violation of applicable water quality standards or effluent limitations. 69-05.2-16-19. Performance standards - Hydrologic balance - Postmining rehabilitation of sedimentation ponds, diversions, impoundments, and treatment facilities.

Before abandoning the permit area, the operator shall renovate all permanent sedimentation ponds, diversions, impoundments, and treatment facilities to meet criteria specified in the detailed design plan for the permanent structures and impoundments.

History: Effective August 1, 1980. 69-05.2-16-20. Performance standards - Hydrologic balance - Stream buffer zones.

1.The operator may not disturb land within one hundred feet [30.48 meters] of an intermittent or perennial stream unless the commission, after consulting the state engineer and the department of environmental quality, specifically authorizes surface mining activities closer to, or through, the stream, after finding that:

a.Surface mining activities will not cause or contribute to the violation of applicable state or federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream; and

b.If there will be a temporary or permanent stream channel diversion, it will comply with

section 69-05.2-16-07.

2.Areas not to be disturbed must be designated buffer zones and marked according to section 69-05.2-13-04.

Chapter 69-05.2-17 Performance Standards - Use of Explosives

N.D. Admin. Code 69-05.2-17 Performance Standards - Use of Explosives

CHAPTER 69-05.2-17

PERFORMANCE STANDARDS - USE OF EXPLOSIVES

Section 69-05.2-17-01Performance Standards - Use of Explosives - General Requirements 69-05.2-17-02Performance Standards - Use of Explosives - Preblasting Survey 69-05.2-17-03Performance Standards - Use of Explosives - Public Notice of Blasting Schedule 69-05.2-17-04Performance Standards - Use of Explosives - Public Notice of Changes to Blasting Schedules [Repealed] 69-05.2-17-05Performance Standards - Use of Explosives - Surface Blasting Procedures 69-05.2-17-06Performance Standards - Use of Explosives - Seismographic Measurements 69-05.2-17-07Performance Standards - Use of Explosives - Records of Blasting Operations 69-05.2-17-01. Performance standards - Use of explosives - General requirements.

1.Operators shall comply with all applicable local and state laws in the use of explosives.

2.Blasts that use five pounds [2.27 kilograms] or less of explosive or blasting agent are subject to all requirements of this chapter except those of section 69-05.2-17-03.

3.All blasting operations must be conducted under the direction of a certified blaster. Each person responsible for blasting operations shall possess a valid certification as required by North Dakota Century Code section 38-14.1-24.

4.Blaster certificates must be carried by blasters or be on file at the mine office during blasting operations.

5.A blaster and at least one other person shall be present at the firing of a blast.

6.Persons responsible for blasting operations shall be familiar with the blasting plan and site-specific performance standards, and give direction and on-the-job training to persons who are not certified and who are assigned to the blasting crew or assist in the use of explosives.

7.Blast design.

a.An anticipated blast design must be submitted to the commission if blasting operations will be conducted within:

(1)One thousand feet [304.8 meters] of any building used as a dwelling, public building, school, church, or community or institutional building outside the permit area; or (2)Five hundred feet [152.4 meters] of an active or abandoned underground mine.

b.The blast design may be presented as part of the permit application or at a time, before the blast, approved by the commission.

c.The blast design must contain sketches of the drill patterns, delay periods, and decking and shall indicate the type and amount of explosives to be used, critical dimensions, and the location and general description of the structures to be protected as well as a discussion of the design factors to be used, which protect the public and meet the applicable airblast, flyrock, and ground vibration standards in section 69-05.2-17-05.

d.The blast design must be prepared and signed by a certified blaster.

e.The commission may require changes to the design submitted.

History: Effective August 1, 1980; amended effective April 1, 1985; May 1, 1990; May 1, 1992. 69-05.2-17-02. Performance standards - Use of explosives - Preblasting survey.

1.Each operator shall notify in writing, at least thirty days before blasting, all residents and owners of manmade dwellings or structures located within one mile [1.61 kilometers] of the permit area how to request a preblasting survey.

2.On request to the commission by a resident or owner of a dwelling or structure located within one mile [1.61 kilometers] of any part of the permit area, the operator shall promptly conduct a preblasting survey of the dwelling or structure and promptly submit a report of the survey to the commission and requester. Any preblasting survey requested more than ten days before blasting must be completed before blasting is initiated. Additions or renovations to a surveyed structure must be surveyed upon request to the commission.

3.The survey must determine the condition of the dwelling or structure and document any preblasting damage and other physical factors that could reasonably be affected by the blasting. Assessments of structures such as pipes, cables, transmission lines, and wells and other water systems must be limited to surface condition and other readily available data.

Special attention must be given to the preblasting condition of wells and other water systems used for human, animal, or agricultural purposes and to the quantity and quality of the water.

4.The written survey report must be prepared and signed by the person who conducted it. The report may recommend special conditions or proposed adjustments to the blasting procedure which should be incorporated into the blasting plan. The requester may notify the permittee and commission in writing of specific areas of disagreement with the survey results.

History: Effective August 1, 1980; amended effective May 1, 1990; October 1, 1994. 69-05.2-17-03. Performance standards - Use of explosives - Public notice of blasting schedule.

1.Blasting schedule publication. Each operator shall:

a.Publish the blasting schedule required by subdivision a of subsection 13 of North Dakota Century Code section 38-14.1-24 at least ten days, but not more than twenty days, before beginning a blasting program in which blasts that use more than five pounds [2.27 kilograms] of explosive or blasting agent are detonated.

b.Distribute copies of the schedule by mail to local governments, public utilities, and each residence within one-half mile [0.85 kilometers] of the blasting site described in the schedule.

c.Republish and redistribute the schedule every twelve months, or more frequently if necessary to meet the requirements of subsection 2.

d.Republish and redistribute a revised blasting schedule at least ten days but not more than twenty days before blasting whenever the area covered by the schedule changes or the actual time periods for blasting significantly differ from the prior announcement.

2.Blasting schedule contents:

a.A schedule may not be so general as to cover the entire permit area or all working hours, but identify the location of the blasting sites and the periods when blasting will occur.

b.The blasting schedule must contain:

(1)Identification of the specific areas in which blasting will take place.

(2)Days and periods when explosives are to be detonated.

(3)Methods used to control access to the blasting area.

(4)Types of audible warnings and all-clear signals used before and after blasting.

(5)A description of unavoidable hazardous situations referred to in section 69-05.2-17-05 approved by the commission for blasting at times other than those in the schedule.

3.Revisions to blasting notices must be submitted to the commission.

4.The commission may limit the area covered, timing, and sequence of blasting as listed in the schedule if the limitations are necessary and reasonable to protect public health and safety or welfare.

History: Effective August 1, 1980; amended effective May 1, 1990. 69-05.2-17-04. Performance standards - Use of explosives - Public notice of changes to blasting schedules.

Repealed effective May 1, 1990. 69-05.2-17-05. Performance standards - Use of explosives - Surface blasting procedures.

1.All blasting must be conducted between sunrise and sunset, unless nighttime blasting is approved by the commission upon a showing by the operator that the public will be protected from adverse noise and other impacts. The commission may specify more restrictive time periods for blasting.

2.Blasting must be conducted at the scheduled times, except in those unavoidable hazardous situations, previously approved by the commission in the permit application, where operator or public safety require unscheduled detonation.

3.Warning and all-clear signals of different character that are audible within a range of one-half mile [0.85 kilometers] from the point of the blast must be given. Each person within the permit area and each person who resides or regularly works within one-half mile [0.85 kilometers] of the permit area must be notified of the meaning of the signals through appropriate instructions. Recipients must be periodically and clearly informed of the meaning of the signals. Signs must be maintained according to subsection 6 of section 69-05.2-13-04.

4.Access to an area possibly subject to flyrock from blasting must be regulated to protect the public and livestock. Access to the area must be controlled to prevent the presence of livestock or unauthorized personnel during blasting and until an authorized representative of the operator has reasonably determined that:

a.There are no unusual circumstances, such as imminent slides or undetonated charges; and

b.Access to and travel in or through the area can be safely resumed.

5.Airblast must be controlled so that it does not exceed the values in this subsection at any dwelling, public building, school, church, or commercial or institutional structure, unless the structure is owned by the operator or permittee and is not leased to any other person. If a building owned by the operator or permittee is leased to another person, the lessee may sign a waiver relieving the operator from meeting the airblast limitations of this subsection.

Lower frequency limit of measuring system, Hz (±3dB)

Maximum level in dB 0.1 Hz or lower - flat response134 peak. 2 Hz or lower - flat response133 peak. 6 Hz or lower - flat response129 peak.

C-weighted, slow response105 peak dBC.

a.In all cases except the C-weighted, slow response, the measuring systems used must have a flat frequency response of at least two hundred Hz at the upper end. The C-weighted case must be measured with a type 1 sound level meter that meets the standard American national standards institute (ANSI) S1.4-1971 specifications.

b.The person who conducts blasting may satisfy the provisions of this subsection by meeting any of the four specifications in the chart in this subsection.

c.The operator shall conduct periodic monitoring to ensure compliance with the airblast standards. The commission may require an airblast measurement of any or all blasts, and may specify the location of the measurements.

d.If necessary to prevent damage, the commission will specify lower maximum allowable airblast levels than those of this subsection for use in the vicinity of a specific blasting operation.

6.Flyrock, including blasted material traveling along the ground, may not be cast from the blasting vicinity more than half the distance to the nearest dwelling or other occupied structure and in no case beyond the line of property owned or leased by the permittee, or beyond the area of regulated access required under subsection 4.

7.Ground vibrations.

a.In all blasting operations, except as authorized in subdivision e, the maximum ground vibration may not exceed the values approved in the blasting plan. The maximum ground vibration for structures listed in subdivision b must be established according to the maximum peak particle velocity limits of subdivision b, the scaled-distance equation of subdivision c, or by the commission under subdivision d. All structures in the vicinity of the blasting area not listed in subdivision b must be protected from damage by a maximum allowable limit on the ground vibration, submitted by the operator in the blasting plan and approved by the commission.

b.The maximum ground vibration may not exceed the following limits at the location of any dwelling, public building, school, church, or community or institutional building outside the permit area.

Distance (D), from the blasting site, in feet Maximum allowable peak particle velocity (V max ) for ground vibration, in inches/second Scaled-distance factor to be applied without seismic monitoring (D ) 0 to 3001.2550 301 to 50001.0055 5001 and beyond0.7565 A seismographic record must be provided for each blast.

c.Scaled-distance equation.

(1)An operator may use the scaled-distance equation, W=(D/D ) , to determine the allowable charge weight of explosives to be detonated in any eight-millisecond period without seismic monitoring, where W = the maximum weight of explosives in pounds; D = the distance, in feet, from the blast site to the nearest protected structure; and D = the scaled-distance factor, which may initially be approved by the commission using the values for scaled-distance factor listed in subdivision b.

(2)The development of a modified scaled-distance factor may be authorized by the commission on receipt of a written request by the operator, supported by seismographic records of blasting at the minesite. The factor must ensure that the particle velocity will not exceed the prescribed maximum allowable peak particle velocity of subdivision b at a ninety-five percent confidence level.

d.The maximum allowable ground vibration will be reduced by the commission beyond the limits otherwise provided by this section if determined necessary to provide damage protection.

e.The maximum airblast and ground-vibration standards of this subsection do not apply at structures owned by the permittee and:

(1)Not leased to another person.

(2)Leased to another person if a written waiver by the lessee is submitted to the commission before blasting.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992. 69-05.2-17-06. Performance standards - Use of explosives - Seismographic measurements.

The commission may require an operator to conduct seismic monitoring of any or all blasts and may specify the location at which the measurements are taken and the degree of detail necessary in the measurement.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990. 69-05.2-17-07. Performance standards - Use of explosives - Records of blasting operations.

A log of each blast, including any seismograph reports, must be retained at the minesite under subsection 13 of North Dakota Century Code section 38-14.1-24. The log must contain:

1.Name of the operator.

2.Location, date, and time of blast.

3.Name, signature, and certificate number of blaster-in-charge.

4.Direction and distance, in feet [meters], to nearest dwelling, school, church, commercial or institutional building, or other protected structure:

a.Not located in the permit area; or

b.Not owned or leased by the person who conducts the surface mining activities.

5.Weather conditions, including temperature, wind direction, and approximate velocity.

6.Type of material blasted.

7.Diameter and depth of holes.

8.Types of explosives used.

9.Total weight of explosives used per hole.

10.Maximum weight of explosives detonated within any eight-millisecond period.

11.Maximum number of holes detonated within any eight-millisecond period.

12.Initiation system.

13.Type and length of stemming.

14.Mats or other protections used.

15.Sketch of the blast pattern, including number of holes, burden, spacing, decks, and delay pattern.

16.Seismograph and airblast records, where required, including:

a.The calibration signal of the gain setting.

b.Seismographic reading, including exact location of seismograph, its distance from the blast, the date and time of the blast, and the vibration levels recorded.

c.Name of the person taking the seismograph reading.

d.Airblast levels recorded.

e.Name of the person and firm analyzing the seismograph report.

17.Reasons and conditions for each unscheduled blast.

History: Effective August 1, 1980; amended effective May 1, 1990; March 1, 2004.

Chapter 69-05.2-18 Performance Standards - Disposal of Excess Spoil

N.D. Admin. Code 69-05.2-18 Performance Standards - Disposal of Excess Spoil

CHAPTER 69-05.2-18

PERFORMANCE STANDARDS - DISPOSAL OF EXCESS SPOIL

Section 69-05.2-18-01Performance Standards - Disposal of Excess Spoil - Requirements 69-05.2-18-01. Performance standards - Disposal of excess spoil - Requirements.

In addition to satisfying subsection 19 of North Dakota Century Code section 38-14.1-24, the operator shall:

1.Place excess spoil from the initial pit and excess spoil not needed to meet the grading requirements of section 69-05.2-21-02 in approved designated disposal areas within a permit area. The spoil must be placed in a controlled manner to ensure:

a.That leachate and surface runoff from the disposal area will not degrade surface or ground waters or exceed effluent limitations.

b.Stability of the disposal area.

c.That the land mass designated as the disposal area is suitable for reclamation and revegetation compatible with the natural surroundings.

2.Design the fill and appurtenant structures using current, prudent engineering practices and meet any design criteria established by the commission. A qualified registered professional engineer experienced in the design of earth and rock fills shall certify the design of the fill and appurtenant structure.

3.Clear all vegetative and organic materials from the disposal area and handle suitable plant growth material according to chapter 69-05.2-15. If approved by the commission, organic material may be used as mulch or included in the suitable plant growth material to control erosion, promote growth of vegetation, or increase soil moisture retention.

4.Divert surface water runoff from the area above the disposal area into stabilized diversion channels designed to meet the requirements of sections 69-05.2-16-06 and 69-05.2-16-07.

5.Transport and place excess spoil in a controlled manner in horizontal lifts not exceeding four feet [1.22 meters] thick; concurrently compact to ensure mass stability and prevent mass movement during and after construction; grade so that surface and subsurface drainage is compatible with natural surroundings; and cover with suitable plant growth material. The commission may approve a design which employs other than four-foot [1.22-meter] lifts of excess spoil if it is demonstrated by the operator and certified by a qualified registered professional engineer that the design will ensure stability of the fill and meet all other applicable requirements.

6.Provide slope protection to minimize surface erosion at the site. Diversion design must meet the requirements of section 69-05.2-16-06. All disturbed areas, including diversion ditches that are not riprapped, must be vegetated upon completion of construction.

7.Not direct drainage over the outslope of the disposal area without commission approval.

8.Locate the disposal area on the most naturally stable area available as approved by the commission. Where possible, fill materials suitable for disposal must be placed upon or above a natural terrace, bench, or berm if the placement provides additional stability.

9.Construct the disposal area to ensure a long-term static safety factor of 1.5.

10.Not allow depressions or impoundments on the completed disposal area.

11.Utilize terraces to control erosion and enhance stability if approved by the commission and consistent with section 69-05.2-21-02.

12.Inspect the disposal area as follows:

a.Each disposal area must be inspected for stability by a registered professional engineer at least quarterly throughout construction and during critical construction periods. Critical construction periods include: foundation preparation including removal of all organic material and suitable plant growth material, placement of underdrainage systems, installation of surface drainage systems, placement and compaction of fill materials, and the final graded and revegetated fill. The registered professional engineer shall provide a certified report to the commission within two weeks after each inspection that the disposal area has been constructed as specified in the design approved by the commission. The report must include appearances of instability, structural weakness, and other hazardous conditions.

b.The certified report on the drainage system and protective filters must include color photographs taken during and after construction but before the underdrains are covered with excess spoil. If the underdrain system is constructed in phases, each phase must be certified separately.

c.Where excess durable rock spoil is placed in single or multiple lifts such that the underdrain system is constructed simultaneously with the excess spoil placement by the natural segregation of dumped materials, color photographs must be taken of the underdrain as the underdrain system is being formed.

d.The photographs accompanying each certified report must be taken in adequate size and number with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site.

e.A copy of the report must be retained at the minesite.

13.Provide an underdrain system, if required by subsection 19 of North Dakota Century Code

section 38-14.1-24, that is protected by an adequate filter and designed and constructed using standard geotechnical engineering methods. Underdrains must consist of nondegradable, non-toxic-forming rock such as natural sand and gravel, sandstone, limestone, or other durable rock that will not slake in water and will be free of coal, clay, or shale.

14.Ensure the foundation and abutments of the disposal area are stable under all conditions of construction and operation. Sufficient foundation investigation and laboratory testing must be performed to determine the design requirements for stability of the foundation. Where the slope of the disposal area exceeds 1v:5h (twenty percent), the existing ground must be plowed, stepped, or keyed in a manner which increases the stability of the disposal area.

15.Construct the outslope of the disposal area to not exceed 1v:2h (fifty percent) or a lesser slope required by the commission.

History: Effective August 1, 1980; amended effective May 1, 1990; May 1,1992.

General Authority: NDCC 38-14.1-03

Law Implemented: NDCC 38-14.1-24

Chapter 69-05.2-19 Performance Standards - Waste Materials

N.D. Admin. Code 69-05.2-19 Performance Standards - Waste Materials

CHAPTER 69-05.2-19

PERFORMANCE STANDARDS - WASTE MATERIALS

Section 69-05.2-19-01Performance Standards - Waste Materials - General Requirements [Repealed] 69-05.2-19-02Performance Standards - Waste Materials - Permanent Disposal of Coal Wastes 69-05.2-19-03Performance Standards - Waste Materials - Temporary Disposal of Coal Processing Wastes 69-05.2-19-04Performance Standards - Waste Materials - Disposal of Noncoal Wastes 69-05.2-19-01. Performance standards - Waste materials - General requirements.

Repealed effective June 1, 1983. 69-05.2-19-02. Performance standards - Waste materials - Permanent disposal of coal wastes.

1.All coal processing waste and waste materials from coal utilization processes and coal conversion facilities to be permanently disposed of within a permit area and that are required to be permitted under the solid waste management rules of the North Dakota department of environmental quality must be disposed of according to those rules and this chapter.

a.The permittee or operator shall file application for and design the disposal site as required by the department of environmental quality and concurrently submit a copy of the application to the commission.

b.The permittee or operator shall also submit to the commission a permit revision that will incorporate the disposal activities into the operations and reclamation plan. The commission will not approve the revision until the department of environmental quality issues a solid waste permit.

2.Waste materials covered by this section must be placed only in excavated pit areas approved by the commission. Prior to disposal, the operator shall demonstrate, using hydrologic, geotechnical, physical, and chemical analyses, that disposal of these materials will not:

a.Adversely affect ground water quality and flow;

b.Create public health hazards; and

c.Cause instability in the disposal areas.

3.All permanent coal processing waste disposal facilities must be designed using current, prudent engineering practices and meet any design criteria established by the commission. A qualified registered professional engineer, experienced in the design of similar earth and waste structures, shall certify the design of the disposal facility.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990; June 1, 1997. 69-05.2-19-03. Performance standards - Waste materials - Temporary disposal of coal processing wastes.

The commission may approve the temporary disposal of coal processing wastes in areas other than excavated pits if the operator demonstrates that:

1.All surface drainage from the area above the disposal site will be diverted as required by the commission.

2.Measures will be taken to minimize surface erosion at the disposal site.

3.All water discharged from the disposal site will comply with chapter 69-05.2-16.

4.No toxic mine drainage from the disposal site will degrade surface or ground water.

5.The disposal site will not create health hazards.

6.Coal processing waste fires can be extinguished in an approved manner.

7.The coal processing waste will be compacted to prevent spontaneous combustion.

8.Fugitive dust from the disposal site can be controlled.

9.The coal processing waste will be permanently disposed of in a timely manner in accordance with section 69-05.2-19-02.

10.The disposal site will be restored in accordance with this article.

11.Dams and embankments constructed of or impounding coal processing waste as a temporary disposal method are in compliance with chapter 69-05.2-20.

12.All temporary coal processing waste disposal facilities are designed using current, prudent engineering practices and meet any design criteria established by the commission. A qualified registered professional engineer, experienced in the design of similar earth and waste structures, shall certify the design of the disposal facility.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990. 69-05.2-19-04. Performance standards - Waste materials - Disposal of noncoal wastes.

1.All noncoal waste materials disposed of within a permit area and that are required to be permitted under solid waste management rules of the department of environmental quality must be disposed of according to those rules and this chapter. Before disposal operations begin, the commission must be advised of plans to develop or modify a noncoal waste disposal site.

2.Noncoal wastes including concrete products, plastic material, abandoned mining machinery, wood materials, and other nonhazardous materials generated during mining and noncoal waste materials from activities outside the permit area, such as municipal wastes, must be placed and stored in a controlled manner in a designated approved portion of the permit area.

Placement and storage of all types of noncoal wastes, including any hazardous materials, must ensure that leachate and surface runoff do not degrade surface or ground water, fires are prevented, and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings. Any wastes containing asbestos may not be disposed of in the permit area unless specific approval is obtained from the department of environmental quality. Solvents, grease, lubricants, paints, flammable liquids, and other combustible materials must be disposed off the permit area except for land treatments of small spills as approved by the department of environmental quality.

3.Disposal sites in the permit area must be designed and constructed to ensure that leachate and drainage from the noncoal waste areas does not degrade surface or underground water.

Wastes must be routinely compacted and covered to prevent combustion and windborne waste. When disposal is completed, two feet [60.96 centimeters] of cover or a greater thickness required by the commission must be placed over the site, slopes stabilized, suitable plant growth material respread and revegetation accomplished. Site operation must comply with all local and state requirements.

4.At no time may any solid waste material be deposited at embankment or impoundment sites, nor may any excavation for solid waste disposal be located within eight feet [2.44 meters] of any coal outcrop or coal storage area.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1,1990; June 1, 1997; May 1, 1999.

Chapter 69-05.2-20 Performance Standards - Dams and Embankments Constructed of or Impounding Coal Processing Waste

N.D. Admin. Code 69-05.2-20 Performance Standards - Dams and Embankments Constructed of or Impounding Coal Processing Waste

CHAPTER 69-05.2-20

PERFORMANCE STANDARDS - DAMS AND EMBANKMENTS CONSTRUCTED OF OR

IMPOUNDING COAL PROCESSING WASTE

Section 69-05.2-20-01Performance Standards - Dams and Embankments Constructed of or Impounding Coal Processing Waste - General Requirements 69-05.2-20-02Performance Standards - Dams and Embankments Constructed of or Impounding Coal Processing Waste - Site Preparation 69-05.2-20-03Performance Standards - Dams and Embankments Constructed of or Impounding Coal Processing Waste - Design and Construction 69-05.2-20-01. Performance standards - Dams and embankments constructed of or impounding coal processing waste - General requirements.

Dams and embankments constructed of or impounding coal processing waste as a temporary disposal method must comply with this chapter and permanent disposal of the waste must comply with

section 69-05.2-19-02. Waste may not be used to construct the dams and embankments unless it has been demonstrated to the commission that the stability of the structure conforms to the requirements of subsection 1 of section 69-05.2-20-03. It must also be demonstrated that the use of waste material will not have a detrimental effect on downstream water quality or the environment due to toxic seepage through the dam or embankment. All demonstrations must be approved by the commission. Prior to commission approval, the state engineer will have an opportunity to review the plans and design of the structures.

History: Effective August 1, 1980; amended effective May 1, 1990. 69-05.2-20-02. Performance standards - Dams and embankments constructed of or impounding coal processing waste - Site preparation.

Before coal processing waste is placed at a dam or embankment site:

1.All vegetative material must be cleared from the site, and suitable plant growth material removed and stockpiled according to this article; and

2.Surface drainage that may cause erosion to the embankment area or the embankment features, whether during construction or after completion, must be diverted by diversion ditches that comply with the requirements of section 69-05.2-16-06. Adequate outlets for discharge from these diversions must comply with section 69-05.2-16-10. Diversions to carry drainage from the upstream area away from the impoundment area and runoff from the surface of the impoundment facility must be designed to carry the peak runoff from a one hundred-year, six-hour precipitation event. The diversion must be maintained to prevent blockage, and the discharge must comply with section 69-05.2-16-10. Sediment control measures must be provided at the discharge of each diversion ditch before entry into natural watercourses according to chapter 69-05.2-16.

History: Effective August 1, 1980; amended effective May 1, 1990. 69-05.2-20-03. Performance standards - Dams and embankments constructed of or impounding coal processing waste - Design and construction.

1.The design of each dam and embankment constructed of coal processing waste or intended to impound the waste must comply with subsections 9 through 21 of section 69-05.2-16-09, modified as follows:

a.The design freeboard between the lowest point on the embankment crest and the maximum water elevation must be at least three feet [91.44 centimeters].

b.The dam and embankment must have a minimum safety factor of 1.5 for a normal pool with steady seepage saturation conditions, and the seismic safety factor must be at least 1.2.

c.The dam or embankment foundation and abutments must be designed to be stable under all conditions of construction and operation of the impoundment. Sufficient foundation investigations and laboratory testing must be performed to determine the safety factors of the dam or embankment for all loading conditions appearing in subdivision b and for all increments of construction.

d.Each structure that meets the criteria of 30 CFR 77.216(a) must have sufficient spillway capacity to safely pass the probable maximum precipitation of a six-hour precipitation event, or greater event specified by the commission, when the impoundment is at high water elevation.

2.Spillways and outlet works must be designed to provide adequate protection against erosion and corrosion. Inlets must be protected against blockage.

3.Dams or embankments constructed of or impounding waste materials must be designed so that at least ninety percent of the water stored during the design precipitation event can be removed within a ten-day period.

4.For dams or embankments constructed of or impounding waste materials, at least ninety percent of the water stored during the design precipitation event must be removed within the ten-day period following the event.

History: Effective August 1, 1980; amended effective May 1, 1990; May 1, 1992; June 1, 1994.

Chapter 69-05.2-21 Performance Standards - Backfilling and Grading

N.D. Admin. Code 69-05.2-21 Performance Standards - Backfilling and Grading

CHAPTER 69-05.2-21

PERFORMANCE STANDARDS - BACKFILLING AND GRADING

Section 69-05.2-21-01Performance Standards - Backfilling and Grading - Timing Requirements 69-05.2-21-02Performance Standards - Backfilling and Grading - Grading Requirements 69-05.2-21-03Performance Standards - Backfilling and Grading - Covering Coal and Toxic-Forming Materials 69-05.2-21-04Performance Standards - Backfilling and Grading - Thin Overburden 69-05.2-21-05Performance Standards - Backfilling and Grading - Slippage and Piping Zones 69-05.2-21-06Performance Standards - Backfilling and Grading - Slope Measurements 69-05.2-21-07Performance Standards - Backfilling and Grading - Stabilizing Rills and Gullies 69-05.2-21-01. Performance standards - Backfilling and grading - Timing requirements.

1.Area surface mining with thin overburden. Rough backfilling and grading must occur according to the time schedule approved by the commission on the basis of the materials submitted under subsection 3 of section 69-05.2-09-11.

2.Area surface mining. Rough backfilling and grading must be completed within one hundred eighty days following coal removal and may not be more than four spoil ridges behind the pit being worked, the spoil from the active pit being considered the first ridge. The commission may grant additional time or distance for rough backfilling and grading if the permittee can demonstrate, through a detailed written analysis under subsection 3 of section 69-05.2-09-11, that additional time or distance is necessary.

History: Effective August 1, 1980; amended effective May 1, 1990; July 1,1995. 69-05.2-21-02. Performance standards - Backfilling and grading - Grading requirements.

1.All disturbed areas must be backfilled and graded according to subsection 3 of North Dakota Century Code section 38-14.1-24 so that they support the approved postmining land use, except that the commission may approve a different contour or topography if:

a.The different contour or topography is a lesser contour or topography consistent with the approximate original contour, with all highwalls, spoil piles, and depressions eliminated (unless small depressions are needed in order to retain moisture to assist vegetation or as otherwise authorized pursuant to North Dakota Century Code chapter 38-14.1 or this

article);

b.The permittee affirmatively demonstrates in the permit application that the lesser contour or topography is necessary to better achieve the postmining land use; and

c.All applicable performance standards of North Dakota Century Code section 38-14.1-24 and this article will be met.

2.In order to conserve soil moisture, ensure stability, and control erosion on final graded slopes, cut-and-fill terraces may be allowed if approved by the commission and if the terraces are compatible with the approved postmining land use and are appropriate substitutes for construction of lower grades on the reclaimed lands. The terraces must meet the following requirements:

a.The width of the individual terrace bench must not exceed twenty feet [6.10 meters], unless specifically approved by the commission as necessary for stability, erosion control, or roads included in the approved postmining land use plan.

b.The vertical distance between terraces must be as specified by the commission.

c.The slope of the terrace outslope may not exceed 1v:2h (fifty percent). Highwalls may not be left as part of terraces.

d.Culverts and underground rock drains must be used on the terrace only when approved by the commission.

3.Small depressions may be constructed, if the depressions:

a.Are approved by the commission to minimize erosion, conserve soil moisture, or promote vegetation;

b.Do not restrict normal access over the area;

c.Are not inappropriate substitutes for lower grades on the reclaimed lands; and

d.Do not adversely affect the intended postmining land use.

4.Disturbed areas must be backfilled and graded to minimize erosion and water pollution both on and off the site.

5.All final grading, spoil preparation, and suitable plant growth material placement must be conducted to minimize erosion and provide a minimum slippage surface for suitable plant growth material replacement. 69-05.2-21-03. Performance standards - Backfilling and grading - Covering coal and toxic-forming materials.

All exposed coal seams and toxic-forming and combustible materials exposed, used, or produced during mining must be adequately covered with nontoxic and noncombustible materials, or treated, to control the impact on surface and ground water in accordance with chapter 69-05.2-16, to prevent sustained combustion, and to minimize adverse effects on plant growth and the approved postmining land use.

History: Effective August 1, 1980; amended effective January 1,1987; May 1, 1990. 69-05.2-21-04. Performance standards - Backfilling and grading - Thin overburden.

The provisions of this section apply only to mining activities where the final thickness of all available spoil and waste materials over the permit area is less than 0.8 of the initial thickness of the overburden and the coal prior to coal removal. The final thickness is the product of the overburden thickness prior to coal removal times the overburden swell factor. When the demonstration is made that thin overburden exists over the permit area, in addition to meeting subdivision b of subsection 3 of North Dakota Century Code section 38-14.1-24, the operator shall:

1.Transport, backfill, and grade, using all available spoil and suitable waste materials from the entire permit area, to attain the lowest practicable stable grade, to achieve a static safety factor of 1.3 to provide adequate drainage and long-term stability of the regraded areas, and to cover all toxic-forming materials.

2.Eliminate highwalls by grading or backfilling to stable slopes not exceeding thirty-five percent, or lesser slopes as the commission may specify to reduce erosion, maintain the hydrologic balance, or achieve the approved postmining land use.

3.Transport, backfill, grade, and revegetate to achieve an ecologically sound land use compatible with the prevailing use in unmined areas surrounding the permit area.

4.Transport, backfill, and grade to ensure that impoundments are constructed only where:

a.It has been demonstrated to the commission that all requirements of chapter 69-05.2-16 have been met; and

b.The impoundments have been approved by the commission as suitable for the approved postmining land use and meet the requirements of this article and all other applicable state laws and regulations. 69-05.2-21-05. Performance standards - Backfilling and grading - Slippage and piping zones.

The commission may require the operator to use current research findings and the best technology currently available to minimize subsurface piping in the spoil and slippage at the suitable plant growth material spoil interface.

History: Effective August 1, 1980; amended effective May 1, 1990. 69-05.2-21-06. Performance standards - Backfilling and grading - Slope measurements.

1.The permittee shall submit a postmining contour map to the commission for approval before spreading suitable plant growth materials. Along with the contour map, the permittee shall specify the thickness of topsoil and subsoil to be respread over the graded area.

2.The commission will approve or disapprove the postmining topography within thirty days and notify the permittee in writing of the decision along with reasons for any disapproval. 69-05.2-21-07. Performance standards - Backfilling and grading - Stabilizing rills and gullies.

When rills and gullies form in areas that have been regraded, the rills and gullies must be filled, graded, or otherwise stabilized as required by the commission prior to respreading suitable plant growth material or when necessary to minimize erosion of the regraded spoil.

History: Effective August 1, 1980; amended effective May 1, 1990.

Chapter 69-05.2-22 Performance Standards - Revegetation

N.D. Admin. Code 69-05.2-22 Performance Standards - Revegetation

CHAPTER 69-05.2-22

PERFORMANCE STANDARDS - REVEGETATION

Section 69-05.2-22-01Performance Standards - Revegetation - General Requirements 69-05.2-22-02Performance Standards - Revegetation - Methods 69-05.2-22-03Performance Standards - Revegetation - Use of Introduced Species [Repealed] 69-05.2-22-04Performance Standards - Revegetation - Timing 69-05.2-22-05Performance Standards - Revegetation - Mulching and Other Soil Stabilizing Practices 69-05.2-22-06Performance Standards - Revegetation - Grazing 69-05.2-22-07Performance Standards - Revegetation - Standards for Success 69-05.2-22-08Performance Standards - Revegetation - Tree and Shrub Stocking for Woodlands [Repealed] 69-05.2-22-01. Performance standards - Revegetation - General requirements.

The permittee shall establish a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area for all disturbed areas, except water areas, surface areas of roads, and other facilities that are approved as a part of the postmining land use, or shall plant species that will support the approved postmining land use. Species planted must be compatible with plant and animal species of the area, meet the requirements of applicable state and federal seed and introduced species laws, and must not be poisonous or noxious. The postmining vegetative cover must be capable of stabilizing the soil surface from erosion and will be considered of the same seasonal variety when it consists of a mixture of species of equal or superior utility for the approved postmining land use when compared to the utility of vegetation existing prior to mining during each season of the year. If the postmining land use is cropland, planting of the crops normally grown will meet this requirement. The commission may approve the substitution of introduced species only if appropriate field trials have demonstrated that the introduced species are desirable and necessary to achieve the approved postmining land use. Lands that have been approved for postmining agricultural uses must be returned to productivity levels equal to or exceeding that of unmined agricultural lands in the surrounding area under equivalent management practices.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990. 69-05.2-22-02. Performance standards - Revegetation - Methods.

1.All revegetation must be carried out in accordance with the approved reclamation plan.

2.When the approved postmining land use is tame pastureland, the permittee shall seed or plant species of introduced grasses and legumes adapted to the local site conditions and capable of supporting grazing and occasional haying under proper management.

3.When the approved postmining land use is native grassland, the species of grasses, legumes, forbs, half-shrubs, or shrubs seeded or planted and their pattern of distribution must be selected by the permittee to provide a diverse, effective, and permanent vegetative cover with seasonal variety, succession, and regenerative capabilities native to the area.

4.When the approved postmining land use is woodland or fish and wildlife habitat where the vegetation type is woodland, the permittee shall plant woody species adapted for local site conditions and climate, in combination with a cover of grains, grasses, legumes, or forbs to provide a diverse, effective, and permanent vegetative cover with the seasonal variety, succession, and regenerative capabilities native to the area. Approval of species composition, minimum stocking, spacing and planting arrangements of trees, shrubs, half-shrubs, and ground cover will be based on local and regional recommendations following consultation with the state game and fish department, state forester, and the natural resource conservation service.

5.When the approved postmining land use is shelterbelt, the permittee shall plant woody species adapted for local site conditions and climate. Understory vegetation must be controlled until it no longer interferes with the growth of woody species. The stocking of trees and shrubs must follow current standards and specifications developed by the natural resource conservation service for farmstead and field windbreaks in North Dakota or others approved by the commission.

6.When fish and wildlife habitat is included in the postmining land use, the permittee shall consult with appropriate state wildlife and land management agencies and shall select those plant species that will fulfill the needs of wildlife for food and cover. Plant groupings and water resources must be appropriately spaced and distributed.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; June 1, 1997.

Law Implemented: NDCC 38-14.1-24, 38-14.1-42 69-05.2-22-03. Performance standards - Revegetation - Use of introduced species.

Repealed effective May 1, 1990. 69-05.2-22-04. Performance standards - Revegetation - Timing.

Seeding and planting of disturbed areas must be conducted during the first normal period for favorable planting conditions after suitable plant growth materials have been spread. The normal period for favorable planting is that planting time generally accepted locally for the type of plant materials selected.

History: Effective August 1, 1980; amended effective May 1, 1990. 69-05.2-22-05. Performance standards - Revegetation - Mulching and other soil stabilizing practices.

1.Mulching or other soil stabilizing practices must be used on all regraded and topsoiled areas to control erosion, promote germination of seeds, or increase the moisture-retention capacity of the soil. The commission may, on a case-by-case basis, suspend the requirement for mulch if the permittee can demonstrate that alternative procedures will achieve the requirements of

section 69-05.2-22-07 and do not cause or contribute to air or water pollution.

2.When required by the commission, mulches must be mechanically or chemically anchored to the soil surface to assure effective protection of the soil and vegetation.

3.Annual grasses and grains may be used alone or in conjunction with another mulch when the commission determines that they will provide adequate soil erosion control and will later be replaced by species approved for the postmining land use.

History: Effective August 1, 1980; amended effective May 1, 1990. 69-05.2-22-06. Performance standards - Revegetation - Grazing.

Livestock grazing will not be allowed on revegetated land until the seedlings are established and can sustain managed grazing. No grazing will be permitted unless the grazing and stocking capacity is agreed to by the commission, the permittee, and the landowner or the governmental land managing agency having jurisdiction over the surface.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990. 69-05.2-22-07. Performance standards - Revegetation - Standards for success.

1.Success of revegetation must be measured by using statistically valid techniques approved by the commission. Comparison of ground cover and productivity may be made on the basis of reference areas, through the use of standards in technical guides published by the United States department of agriculture, or through the use of other approved standards. If reference areas are used, the management of the reference area during the responsibility period required in subsection 2 must be comparable to that required for the approved postmining land use of the permit area. If standards are used, they must be approved by the commission and the office of surface mining reclamation and enforcement. Approved standards are contained in the commission's Standards for Evaluation of Revegetation Success and Recommended Procedures for Pre- and Postmining Vegetation Assessments.

2.The period of responsibility under the performance bond requirements of section 69-05.2-12-09 will begin following augmented seeding, planting, fertilization, irrigation, or other work, except for cropland and prime farmland where the period of responsibility begins at the date of initial planting of the crop being grown or a precropland mixture of grasses and legumes, and must continue for not less than ten years. However, for eligible lands that are remined, the revegetation responsibility period must continue for not less than five years.

3.Vegetation establishment, for the purpose of the third stage bond release provided for in subdivision c of subsection 7 of North Dakota Century Code section 38-14.1-17, will be determined for each postmining land use according to the following procedures:

a.For native grassland, tame pastureland, and fish and wildlife habitat where the vegetation type is grassland, ground cover on the permit area must be equal to or greater than that of the approved reference area or standard with ninety percent statistical confidence. All species used in determining ground cover must be perennial species not detrimental to the approved postmining land use.

b.For cropland, vegetation will be considered established after the successful seeding of the crop being grown or a precropland mixture of grasses and legumes.

c.For prime farmland, annual average crop production from the permit area must be equal to or greater than that of the approved reference area or standard with ninety percent statistical confidence for a minimum of three crop years.

d.For woodland, shelterbelts, and fish and wildlife habitat where the vegetation type is woodland, the number of trees and shrubs must be equal to or greater than the approved standard. Understory growth must be controlled. Erosion must be adequately controlled by mulch or site characteristics.

e.For fish and wildlife habitat where the vegetation type is wetland, the basin must exhibit the capacity to hold water and support wetland vegetation. Ground cover of the contiguous areas must be adequate to control erosion.

4.The success of revegetation on the permit area at the time of final bond release must be determined for each postmining land use according to the following:

a.For native grassland, the following must be achieved for any two years after year six of the responsibility period:

(1)Ground cover and productivity of the permit area must be equal to or greater than that of the approved reference area or standard with ninety percent statistical confidence; and (2)Diversity, seasonality, and permanence of the vegetation of the permit area must equal or exceed the approved standard.

b.For tame pastureland, ground cover and productivity of the permit area must be equal to or greater than that of the approved standard with ninety percent statistical confidence for any two years after year six of the responsibility period.

c.For cropland, crop production from the permit area must be equal to or greater than that of the approved reference area or standard with ninety percent statistical confidence for any two years after year six of the responsibility period.

d.For prime farmlands, a showing that the requirements for the restoration of productivity as specified in subdivision c of subsection 3 have been met and that the ten-year period of responsibility has elapsed.

e.For woodlands and fish and wildlife habitat where the vegetation type is woodland, the following must be achieved during the growing season of the last year of the responsibility period:

(1)The number of woody plants established on the permit area must be equal to or greater than the number of live woody plants of the same life form of the approved standard with ninety percent statistical confidence. Trees, shrubs, half-shrubs, root crowns, or root sprouts used in determining success of stocking must meet the following criteria:

(a)Be healthy;

(b)Be in place for at least two growing seasons;

(c)If any replanting of woody plants took place during the responsibility period, the total number planted during the last six years of that period must be less than twenty percent of the total number of woody plants required. Any replanting must be by means of transplants to allow for adequate accounting of plant stocking; and (d)Volunteer trees and shrubs of approved species will be considered at least two years of age and can be counted toward meeting success standards; however, volunteer trees must be at least thirty inches [76 centimeters] in height to be included in the count. Suckers on shrubby vegetation can be counted as volunteer plants when it is evident the shrub community is vigorous and expanding;

(2)The ground cover must be equal to or greater than ninety percent of the ground cover of the approved standard with ninety percent statistical confidence and must be adequate to control erosion; and (3)Species diversity, seasonal variety, and regenerative capacity of the vegetation on the permit area must be evaluated on the basis of species stocked and expected survival and reproduction rates.

f.For shelterbelts, the following must be achieved during the growing season of the last year of the responsibility period:

(1)Trees, shrubs, half-shrubs, root crowns, or root sprouts used in determining success of stocking must meet the following criteria:

(a)Be healthy;

(b)Be in place for at least two growing seasons;

(c)If any replanting of woody plants took place during the responsibility period, the total number planted during the last six years of that period must be less than twenty percent of the total number of woody plants required. Any replanting must be by means of transplants to allow for adequate accounting of plant stocking; and (d)Volunteer trees and shrubs of approved species will be considered at least two years of age and can be counted toward meeting success standards; however, volunteer trees must be at least thirty inches [76 centimeters] in height to be included in the count. Suckers on shrubby vegetation can be counted as volunteer plants when it is evident the shrub community is vigorous and expanding;

(2)Shelterbelt density and vigor must be equal to or greater than that of the approved standard; and (3)Erosion must be adequately controlled.

g.For fish and wildlife habitat, where the vegetation type is wetland, vegetation zones and dominant species must be equal to those of the approved standard during the growing season of the last year of the responsibility period. In addition, wetland permanence and water quality must meet approved standards.

h.For fish and wildlife habitat, where the vegetation type is grassland, the following must be achieved during the growing season of the last year of the responsibility period:

(1)Ground cover must be equal to or greater than that of the approved standard with ninety percent statistical confidence and must be adequate to control erosion.

(2)Species diversity, seasonal variety, and regenerative capacity of the vegetation must meet or exceed the approved standard.

i.For previously mined areas that were not reclaimed to the requirements of this chapter, any reclamation requirements in effect when the areas were mined must be met. In addition, the ground cover may not be less than can be supported by the best available plant growth material in the reaffected area, nor less than the ground cover existing before redisturbance. Adequate measures must be in place to control erosion as approved by the commission. If lands affected by coal mining activities prior to January 1, 1970, are remined or otherwise redisturbed, the applicable standard must be met for the last two consecutive years of the minimum five-year responsibility period that applies to remined lands. However, if the postmining land use for the remined area is woodlands, shelterbelts, or fish and wildlife habitat, the applicable standard must be met for just the last year of the responsibility period.

j.For areas to be developed for water, residential, or industrial and commercial uses within two years after the completion of grading or soil replacement, the ground cover on these areas may not be less than required to control erosion.

k.For areas to be developed for recreation, woody plants must meet or exceed the stocking and plant establishment standards for woodlands or shelterbelts found in paragraph 1 of subdivision e or in subdivision f as applicable. In addition, ground cover must not be less than required to achieve the approved postmining land use.

l.If a reclaimed tract contains a mixture of prime and nonprime farmlands, the commission may approve a single yield standard for the entire tract based on the soil types that occurred on the prime and nonprime areas prior to mining. The operator must provide a detailed description and comparison of the soil mapping units, acreages, and yield calculations in the reclamation plan as required by subsection 8 of section 69-05.2-09-15.

When a single yield standard is approved, the operator must demonstrate that the standard has been achieved for any three years starting no sooner than the sixth year of the responsibility period. If this option is approved, the operator must also meet the applicable requirements of section 69-05.2-26-05 for the entire tract.

5.Throughout the liability period the permittee must:

a.Maintain any necessary fences and use proper management practices; and

b.Conduct periodic measurements of vegetation, soils, and water prescribed or approved by the commission.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1990; May 1, 1992;

January 1, 1993; June 1, 1997; May 1, 1999; May 1, 2001; March 1, 2004; April 1, 2007; April 1, 2011. 69-05.2-22-08. Performance standards - Revegetation - Tree and shrub stocking for woodlands.

Repealed effective May 1, 1990.

Chapter 69-05.2-23 Performance Standards - Postmining Land Use

N.D. Admin. Code 69-05.2-23 Performance Standards - Postmining Land Use

CHAPTER 69-05.2-23

PERFORMANCE STANDARDS - POSTMINING LAND USE

Section 69-05.2-23-01Performance Standards - Postmining Land Use - Determining Premining Land Use 69-05.2-23-02Performance Standards - Postmining Land Use - Land Use Categories 69-05.2-23-03Performance Standards - Postmining Land Use - Criteria for Approving Alternative Postmining Land Uses 69-05.2-23-01. Performance standards - Postmining land use - Determining premining land use.

1.The postmining land use must be compared to those uses the land previously supported under proper management unless the land has been previously mined and not reclaimed.

2.The postmining land use for land that has been previously mined and not reclaimed must be judged on the basis of the land use that existed prior to any mining. However, if the land cannot be reclaimed to the land use that existed prior to any mining because of the previously mined condition, the postmining land use must be judged on the basis of the highest and best use that can be achieved which is compatible with surrounding areas and does not require the disturbance of areas previously unaffected by mining.

3.If the premining use of the land was changed within five years of beginning of mining, the comparison of postmining use to premining use must also include the historic use of the land preceding mining.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; May 1, 1990; May 1, 1992.

General Authority: NDCC 38-14.1-08, 38-14.1-24

Law Implemented: NDCC 38-14.1-24 69-05.2-23-02. Performance standards - Postmining land use - Land use categories.

Land use is categorized as follows:

1.Cropland.

2.Tame pastureland.

3.Native grassland.

4.Woodland.

5.Fish and wildlife habitat.

6.Developed water resources.

7.Recreation.

8.Residential.

9.Industrial and commercial.

10.Shelterbelts.

History: Effective August 1, 1980; amended effective June 1, 1983; May 1, 1988; May 1, 1990.

General Authority: NDCC 38-14.1-03, 38-14.1-24

Law Implemented: NDCC 38-14.1-24 69-05.2-23-03. Performance standards - Postmining land use - Criteria for approving alternative postmining land uses.

An alternative postmining land use may be approved by the commission, after consulting the landowner or the land management agency having jurisdiction over state or federal lands, if the following criteria are met:

1.There is reasonable likelihood the use will be achieved.

2.The use does not present an actual or probable hazard to public health or safety, or threat of water diminution or pollution.

3.The use will not:

a.Be impractical;

b.Be inconsistent with applicable land use policies or plans;

c.Involve unreasonable delay in implementation; or

d.Cause or contribute to violation of federal, state, or local law.

History: Effective August 1, 1980; amended effective May 1, 1988.

General Authority: NDCC 38-14.1-03, 38-14.1-24

Law Implemented: NDCC 38-14.1-24, 38-14.1-42

Chapter 69-05.2-24 Performance Standards - Roads - Other Transportation Facilities - Support Facilities

N.D. Admin. Code 69-05.2-24 Performance Standards - Roads - Other Transportation Facilities - Support Facilities

CHAPTER 69-05.2-24

PERFORMANCE STANDARDS - ROADS - OTHER TRANSPORTATION FACILITIES -

SUPPORT FACILITIES

Section 69-05.2-24-01Performance Standards - Roads - General Requirements 69-05.2-24-02Performance Standards - Roads - Location [Repealed] 69-05.2-24-03Performance Standards - Roads - Design and Construction of Primary Roads 69-05.2-24-04Performance Standards - Roads - Drainage [Repealed] 69-05.2-24-05Performance Standards - Roads - Surfacing [Repealed] 69-05.2-24-06Performance Standards - Roads - Maintenance [Repealed] 69-05.2-24-07Performance Standards - Roads - Restoration 69-05.2-24-08Performance Standards - Other Transportation Facilities 69-05.2-24-09Performance Standards - Support Facilities and Utility Installations 69-05.2-24-01. Performance standards - Roads - General requirements.

1.Each road, as defined in subsection 93 of section 69-05.2-01-02, must be classified as either a primary or ancillary road.

a.A primary road is any road which is:

(1)Used for transporting coal or spoil;

(2)Frequently used for access or other purposes for a period in excess of six months; or (3)To be retained for an approved postmining land use.

b.An ancillary road is any road not classified as a primary road.

2.Each road must be located, designed, constructed, reconstructed, used, maintained, and reclaimed so as to:

a.Control or prevent erosion, siltation, and the air pollution attendant to erosion, including road dust as well as dust occurring on other exposed surfaces, by measures such as vegetating, watering, using chemical or other dust suppressants, or otherwise stabilizing all exposed surfaces in accordance with current, prudent engineering practices.

b.Control or prevent damage to fish, wildlife, or their habitat and related environmental values.

c.Control or prevent additional contributions of suspended solids to streamflow or runoff outside the permit area.

d.Neither cause nor contribute to, directly or indirectly, the violation of state or federal water quality standards applicable to receiving waters.

e.Refrain from seriously altering the normal flow of water in streambeds or drainage channels.

f.Prevent or control damage to public or private property, including the prevention or mitigation of adverse effects on lands within the boundaries of units of the national park system, the national wildlife refuge system, the national system of trails, the national wilderness preservation system, the wild and scenic rivers system, including designated study rivers, and national recreation areas designated by act of Congress.

g.Use nonacid-forming and nontoxic-forming substances in road surfacing.

3.The design and construction or reconstruction of roads must incorporate appropriate limits for grade, width, surface materials, surface drainage control, culvert placement, and culvert size, in accordance with current, prudent engineering practices, and any necessary design criteria established by the commission.

4.Roads must be located to minimize downstream sedimentation and flooding, but in no case may roads be located in the channel of an intermittent or perennial stream unless specifically approved by the commission under section 69-05.2-16-20, and all other applicable requirements of chapter 69-05.2-16 are met.

5.Roads must be maintained to meet the performance standards of this chapter and any additional criteria specified by the commission.

6.A road damaged by a catastrophic event, such as a flood or earthquake, must be repaired as soon as is practicable after the damage has occurred.

History: Effective August 1, 1980; amended effective May 1, 1992; April 1, 2007. 69-05.2-24-02. Performance standards - Roads - Location. 69-05.2-24-03. Performance standards - Roads - Design and construction of primary roads.

Primary roads must meet the requirements of section 69-05.2-24-01 and the additional requirements of this section.

1.The construction or reconstruction of primary roads must be certified in a report to the commission by a qualified registered professional engineer with experience in the design and construction of roads. The report must indicate that the primary road has been constructed or reconstructed as designed and in accordance with the approved plan.

2.Each primary road embankment must have a minimum static factor of safety of 1.3.

3.To minimize erosion, a primary road must be located, insofar as is practicable, on the most stable available surface.

4.Fords of perennial or intermittent streams by primary roads are prohibited unless they are specifically approved by the commission as temporary routes during periods of road construction.

5.In accordance with the approved plan, all primary roads must:

a.Be constructed or reconstructed and maintained to have adequate drainage control, using structures such as bridges, ditches, cross drains, and ditch relief drains. The drainage control system must be designed to safely pass the peak runoff from a ten-year, six-hour precipitation event, or greater event as specified by the commission.

b.Have drainage pipes and culverts installed as designed. Both must be maintained in a free and operating condition and erosion at inlets and outlets must be prevented or controlled.

c.Have drainage ditches constructed and maintained to prevent uncontrolled drainage over the road surface and embankment.

d.Have culverts installed and maintained to sustain the vertical soil pressure, the passive resistance of the foundation, and the weight of vehicles using the road.

e.Not alter or relocate natural stream channels unless specifically approved by the commission under section 69-05.2-16-20 and all other applicable requirements of

chapter 69-05.2-16 are met.

f.Except as provided by subsection 4, construct perennial or intermittent stream channel crossings using bridges, culverts, low-water crossings, or other structures designed, constructed, and maintained using current, prudent engineering practices. The commission will ensure that low-water crossings are designed, constructed, and maintained to prevent erosion of the structure or streambed and additional contributions of suspended solids to streamflow.

g.Be surfaced with material approved by the commission as being sufficiently durable for the anticipated volume of traffic and the weight and speed of vehicles using the road. 69-05.2-24-04. Performance standards - Roads - Drainage. 69-05.2-24-05. Performance standards - Roads - Surfacing. 69-05.2-24-06. Performance standards - Roads - Maintenance. 69-05.2-24-07. Performance standards - Roads - Restoration.

1.Unless the commission approves retention of a road as suitable for the approved postmining land use, immediately after the road is no longer needed for mining and reclamation operations:

a.The road must be closed to vehicular traffic;

b.The natural-drainage patterns must be restored;

c.All bridges and culverts must be removed;

d.Roadbeds must be ripped, plowed, and scarified;

e.Cut and fill areas must be graded in accordance with section 69-05.2-21-02;

f.Cross drains, dikes, and water bars must be constructed to minimize erosion; and

g.Disturbed surfaces must be covered with suitable plant growth material in accordance with section 69-05.2-15-04 and revegetated in accordance with chapter 69-05.2-22.

2.Unless otherwise authorized by the commission, all road-surfacing materials must be removed, hauled or conveyed, and disposed of under section 69-05.2-19-04. 69-05.2-24-08. Performance standards - Other transportation facilities.

Railroad loops, spurs, sidings, surface conveyor systems, chutes, aerial tramways, or other transportation facilities must be designed, constructed or reconstructed, and maintained, and the area restored, to:

1.Control and minimize diminution or degradation of water quality and quantity;

2.Control and minimize erosion and siltation;

3.Control and minimize air pollution; and

4.Prevent damage to public or private property. 69-05.2-24-09. Performance standards - Support facilities and utility installations.

1.Support facilities required for, or used incidentally to, the operation of the mine, including mine buildings, coal loading facilities at or near the minesite, coal storage facilities, equipment storage facilities, fan buildings, hoist buildings, preparation plants, sheds, shops, and other buildings, must be designed, constructed or reconstructed, and located to prevent or control erosion and siltation, water pollution, and damage to public or private property.

2.All surface mining activities must be conducted in a manner which minimizes damage, destruction, or disruption of services provided by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under, or through the permit area, unless otherwise approved by the owner of those facilities and the commission.

Chapter 69-05.2-25 Performance Standards - Operations in Alluvial Valley Floors

N.D. Admin. Code 69-05.2-25 Performance Standards - Operations in Alluvial Valley Floors

CHAPTER 69-05.2-25

PERFORMANCE STANDARDS - OPERATIONS IN ALLUVIAL VALLEY FLOORS

Section 69-05.2-25-01Performance Standards - Alluvial Valley Floors - Essential Hydrologic Functions 69-05.2-25-02Performance Standards - Alluvial Valley Floors - Protection of Agricultural Uses 69-05.2-25-03Performance Standards - Alluvial Valley Floors - Monitoring 69-05.2-25-04Performance Standards - Alluvial Valley Floors - Protection of Farming and Water Supplies 69-05.2-25-01. Performance standards - Alluvial valley floors - Essential hydrologic functions.

1.The essential hydrologic functions of alluvial valley floors not within an affected area must be preserved by maintaining the geologic, hydrologic, and biologic characteristics that support those functions.

2.Surface coal mining and reclamation operations must be conducted to reestablish the essential hydrologic functions of alluvial valley floors within an affected area by reconstructing the geologic, hydrologic, and biologic characteristics that support those functions.

3.The characteristics are those identified in section 69-05.2-09-16 and others identified during premining investigations or monitoring conducted during the operation.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-21, 38-14.1-24 69-05.2-25-02. Performance standards - Alluvial valley floors - Protection of agricultural uses.

Surface coal mining and reclamation operations must be conducted to ensure that the agricultural utility and the level of productivity of alluvial valley floors in affected areas are reestablished.

History: Effective August 1, 1980; amended effective May 1, 1990.

Law Implemented: NDCC 38-14.1-21, 38-14.1-24 69-05.2-25-03. Performance standards - Alluvial valley floors - Monitoring.

1.An environmental monitoring system must be installed, maintained, and operated by the permittee on all alluvial valley floors during operations and continued until all bonds are released. The monitoring system must provide sufficient information to allow the commission to determine that:

a.The agricultural utility and production of the alluvial valley floor not within the affected area are being preserved.

b.The potential agricultural utility and production on the alluvial valley floor within the affected area have been reestablished.

c.The important characteristics supporting the essential hydrologic functions of an alluvial valley floor in the affected area have been reestablished.

d.The important characteristics supporting the essential hydrologic functions of an alluvial valley floor in areas not affected are preserved during and after mining.

2.Monitoring must be performed at frequencies adequate to indicate long-term trends that could affect agricultural use of the alluvial valley floors.

3.Monitoring must be performed during operations to identify characteristics of the alluvial valley floor not identified in the permit application and to evaluate the importance of all characteristics.

4.All monitoring data and analyses must be submitted to the commission according to the timetable approved in the permit application. Hydrologic monitoring and reporting must comply with sections 69-05.2-16-05 and 69-05.2-16-14.

History: Effective August 1, 1980; amended effective May 1, 1990; May 1,1992; January 1, 1993.

Law Implemented: NDCC 38-14.1-24, 38-14.1-42 69-05.2-25-04. Performance standards - Alluvial valley floors - Protection of farming and water supplies.

1.If environmental monitoring shows that a mining operation is responsible for interrupting, discontinuing, or precluding farming on alluvial valley floors, or is causing material damage to water that supplies alluvial valley floors, the operation must cease until remedial measures are taken by the operator. The remedial measures must be approved by the commission prior to the resumption of mining.

2.Paragraphs 1 and 2 of subdivision e of subsection 3 of North Dakota Century Code section 38-14.1-21 do not apply to lands identified in a reclamation plan approved by the commission prior to July 1, 1979, for any operation that, in the year preceding July 1, 1979:

a.Produced coal in commercial quantities and was located within or adjacent to an alluvial valley floor; or

b.Obtained specific permit approval to conduct operations within an alluvial valley floor.

History: Effective August 1, 1980; amended effective May 1, 1990; January 1,1993.

Law Implemented: NDCC 38-14.1-21, 38-14.1-24, 38-14.1-28

Chapter 69-05.2-26 Performance Standards - Prime Farmland

N.D. Admin. Code 69-05.2-26 Performance Standards - Prime Farmland

CHAPTER 69-05.2-26

PERFORMANCE STANDARDS - PRIME FARMLAND

Section 69-05.2-26-01Performance Standards - Prime Farmland - Special Requirements [Repealed] 69-05.2-26-02Performance Standards - Prime Farmland - Soil Removal 69-05.2-26-03Performance Standards - Prime Farmland - Soil Stockpiling 69-05.2-26-04Performance Standards - Prime Farmland - Soil Replacement 69-05.2-26-05Performance Standards - Prime Farmland - Revegetation and Restoration of Productivity 69-05.2-26-06Performance Standards - Prime Farmland - Exemptions 69-05.2-26-01. Performance standards - Prime farmland - Special requirements.

Repealed effective June 1, 1983. 69-05.2-26-02. Performance standards - Prime farmland - Soil removal.

For all prime farmlands to be mined, in addition to satisfying subdivisions a and b of subsection 6 of North Dakota Century Code section 38-14.1-24 and the applicable requirements of section 69-05.2-15-02, the operator or permittee shall ensure that the minimum thickness of soil and soil material to be removed for use in reconstruction of prime farmland soils is sufficient to meet the soil replacement requirements of section 69-05.2-26-04. 69-05.2-26-03. Performance standards - Prime farmland - Soil stockpiling.

If stockpiling is approved in lieu of immediate redistribution, the prime farmland topsoil and subsoil must be stockpiled separately from each other. Stockpiles must be protected according to section 69-05.2-15-03. 69-05.2-26-04. Performance standards - Prime farmland - Soil replacement.

In addition to meeting the applicable requirements of section 69-05.2-15-04, the operator shall replace soil materials on areas to be reconstructed as prime farmland according to the following:

1.The suitable plant growth materials must be respread over areas that have a landscape configuration similar to that which existed in the prime farmland areas prior to mining.

2.The minimum thickness of suitable plant growth material to be reconstructed for prime farmland must be forty-eight inches [1.22 meters], or a thickness which is equal to the depth of the original soil profile up to a subsurface horizon which inhibits root penetration, whichever is shallower. The commission will specify a thickness greater than forty-eight inches [1.22 meters] wherever necessary to restore productive capacity due to uniquely favorable soil horizons at greater depths. Soil horizons are considered as inhibiting root penetration if their densities, chemical properties, or water supplying capacities restrict or prevent penetration by roots of plants common to the vicinity of the permit area and have little or no beneficial effect on soil productive capacity.

3.Replace the suitable plant growth materials in a manner that avoids excessive compaction.

4.Replace the subsoil materials specified in section 69-05.2-26-02 to the thickness needed to meet the requirements of subsection 2.

5.Replace the topsoil materials specified in section 69-05.2-26-02 as the final surface soil layer.

The thickness of the topsoil layer must be the approximate average of the materials saved. 69-05.2-26-05. Performance standards - Prime farmland - Revegetation and restoration of productivity.

The following revegetation requirements must be met for areas being returned to prime farmland after mining:

1.Following soil replacement, the operator shall establish a vegetative cover capable of stabilizing the soil surface. All revegetation must comply with the plan approved by the commission and be carried out in a manner that encourages prompt vegetative cover and recovery of productive capacity. The timing and mulching provisions of sections 69-05.2-22-04 and 69-05.2-22-05 must be met.

2.Measurement of success in prime farmland revegetation will be determined in accordance with section 69-05.2-22-07.

3.Prime farmland productivity must be restored in accordance with the following:

a.Measurement of productivity must be initiated within ten years after completion of soil replacement.

b.Productivity must be measured on a representative sample or on all of the mined and reclaimed prime farmland area using the crop determined under subdivision f. The permittee shall use a statistically valid sampling technique approved by the commission.

Approved techniques are found in the commission's Standards for Evaluation of Revegetation Success and Recommended Procedures for Pre- and Postmining Vegetation Assessments.

c.The measurement period for determining average annual crop production is specified in subdivision c of subsection 3 of section 69-05.2-22-07.

d.The level of management applied during the measurement period must be the same as that used on nonmined prime farmland in the surrounding area.

e.Restoration of prime farmland productivity will be considered achieved when the average yield equals or exceeds that of the crop established on nonmined prime farmland soils in the surrounding areas. The soil series, texture, and slope of the nonmined prime farmlands must be the same or similar to the prime farmlands that were mined and management practices must be equivalent.

f.The crop on which restoration of productivity is proven must be selected from the crops most commonly produced on the surrounding prime farmland. Where row crops are the dominant crops grown on prime farmland in the area, the row crop requiring the greatest rooting depth must be used as one of the crops.

g.Crop yields for the same or similar nonmined prime farmland soils during a given crop season must be determined by methods contained in Standards for Evaluation of Revegetation Success and Recommended Procedures for Pre- and Postmining Vegetation Assessment or other methods approved by the commission and the office of surface mining reclamation and enforcement.

h.If a reclaimed tract contains a mixture of prime and nonprime farmlands, the commission may approve a single yield standard for the entire tract as allowed under subdivision l of subsection 4 of section 69-05.2-22-07.

History: Effective August 1, 1980; amended effective May 1, 1990; May 1,1992; June 1, 1997; May 1, 2001. 69-05.2-26-06. Performance standards - Prime farmland - Exemptions.

This chapter does not apply to:

1.Lands on which surface coal mining and reclamation operations are conducted under any permit issued before July 1, 1979.

2.Lands on which surface coal mining and reclamation operations are conducted under any renewal or revision of a permit issued before July 1, 1979.

3.Lands included in any existing surface coal mining operations for which a permit was issued for all or any part before July 1, 1979; provided that:

a.The lands are part of a single continuous mining operation begun under a permit issued before July 1, 1979.

b.The permittee had a legal right to mine the lands before July 1, 1979, through ownership, contract, or lease but not including an option to buy, lease, or contract.

c.The lands contain part of a continuous recoverable coal seam that was being mined in a single continuous mining operation begun under a permit issued prior to July 1, 1979.

4.For the purposes of this section, a surface coal mining operation is presumed to consist only of a single continuous mining pit under permit before July 1, 1979, but may include noncontiguous parcels if the operator can prove by clear and convincing evidence that, before July 1, 1979, the parcels were part of a single permitted operation. Clear and convincing evidence includes contracts, leases, deeds, or other legal documents, excluding options, that specifically treat physically separate parcels as one surface coal mining operation.

History: Effective June 1, 1983; amended effective May 1, 1990.

Chapter 69-05.2-27 Requirements for Research Plots and Permits for Experimental Surface Coal Mining and Reclamation Operations

N.D. Admin. Code 69-05.2-27 Requirements for Research Plots and Permits for Experimental Surface Coal Mining and Reclamation Operations

CHAPTER 69-05.2-27

REQUIREMENTS FOR RESEARCH PLOTS AND PERMITS FOR EXPERIMENTAL

SURFACE COAL MINING AND RECLAMATION OPERATIONS

Section 69-05.2-27-01Research Plots 69-05.2-27-02Variances for Experimental Surface Coal Mining and Reclamation Practices 69-05.2-27-01. Research plots.

Any agency or authorized organization wishing to establish experimental or evaluation plots of any kind on mined land prior to the release of bond shall obtain the written approval of the commission and the operator. Landowner approval need be obtained only if the anticipated life of the plot will extend beyond the time at which bond release for the permit area is sought. Applicants shall state the objectives sought, the methods proposed to be used, the amount of land required, and duration of the proposed research. The applicant shall also agree to submit a yearly progress report and a final report to both the commission and the operator. Once the experimental work has ended, the acreage must be returned to acceptable state reclamation requirements. The operator is to assume the costs of bringing the land used for experimental plots to a condition that will meet the reclamation requirements unless the operator obtains written assurance from the agency or organization of that entity's intent and ability to reclaim.

History: Effective August 1, 1980; amended effective May 1, 1990.

General Authority: NDCC 38-14.1-03

Law Implemented: NDCC 38-14.1-03, 38-14.1-24 69-05.2-27-02. Variances for experimental surface coal mining and reclamation practices.

1.In order to encourage advances in surface mining and reclamation practices, or to allow postmining land use for industrial, commercial, residential, or public use (including recreational facilities), on an experimental basis where the postmining land use proposed requires an experimental practice to demonstrate feasibility, the commission may, with the approval of the director of the office of surface mining reclamation and enforcement, authorize variances in individual cases from the standards of North Dakota Century Code section 38-14.1-24.

2.Variances will not be authorized for other than experimental practices. For the purpose of this

section, "experimental practice" means the use of alternative surface coal mining and reclamation operation practices for experimental or research purposes.

3.No person shall engage in or maintain any experimental practice unless that practice has first been approved in a permit.

4.Each person who desires to conduct an experimental practice shall submit a permit or revision application to the commission and to the director of the office of surface mining reclamation and enforcement for approval. The application must contain appropriate descriptions, maps, plans, and data which show:

a.The nature of the experimental practice, including a description of the performance standards for which the variances are requested, the duration of the experimental practice, and any special monitoring which will be conducted.

b.How use of the experimental practice:

(1)Encourages advances in mining and reclamation technology; or (2)Allows a postmining land use for industrial, commercial, residential, or public use (including recreational facilities), on an experimental basis, when the results are not otherwise attainable under the standards.

c.That the operations proposed for using an experimental practice are not larger nor more numerous than necessary to determine the effectiveness and economic feasibility of the practice.

d.That the experimental practice:

(1)Is potentially more or at least as environmentally protective, during and after the proposed operations, as would be required under the standards.

(2)Will not reduce the protection afforded public health and safety below that provided by the standards.

e.That the applicant will conduct special monitoring with respect to the experimental practice during and after operations. The monitoring program must:

(1)Ensure the collection, analysis, and reporting of sufficient and reliable data to enable the commission and the director of the office of surface mining reclamation and enforcement to make adequate comparisons with other operations employing similar practices.

(2)Include requirements designed to identify, as soon as possible, potential risks to the environment and public health and safety from the use of the practice.

5.Each application must specify the environmental protection performance standards which will be implemented in the event the objective of the experimental practice is a failure.

6.All experimental practices for which variances are sought must be specifically identified through newspaper advertisements by the applicant and the written notifications by the commission required by North Dakota Century Code section 38-14.1-18.

7.No permit authorizing an experimental practice will be issued unless the commission first finds, in writing, upon the basis of both a complete application filed in accordance with the requirements of this section and the comments of the director of the office of surface mining reclamation and enforcement that:

a.The practice meets the requirements of subdivisions b through e of subsection 4.

b.The practice is based on a clearly defined set of objectives which can reasonably be expected to be achieved.

c.The practice has been specifically approved, in writing, by the director of the office of surface mining reclamation and enforcement.

d.The permit contains conditions which specifically:

(1)Limit the practice authorized to that granted by the commission and the director of the office of surface mining reclamation and enforcement.

(2)Impose enforceable alternative environmental protection requirements.

(3)Require the person conducting the periodic monitoring, recording, and reporting program to include additional requirements as the commission or the director of the office of surface mining reclamation and enforcement may require.

8.Each permit which authorizes the use of an experimental practice will be reviewed at least every two and one-half years by the commission, or at least once prior to the middle of the permit term. After review, the commission will, with the consent of the director of the office of surface mining reclamation and enforcement, require by order, supported by written findings, any reasonable revision or modification of the permit provisions. Copies of commission written findings will be sent to the permittee. Any person who is or may be adversely affected by the order has the opportunity for review under North Dakota Century Code sections 38-14.1-30 and 38-14.1-35.

9.Experimental practices granting variances from the special environmental standards of

chapter 69-05.2-26, applicable to prime farmlands, will be approved only after consultation with the natural resource conservation service.

10.Revisions or modifications to an experimental practice will be processed in accordance with

section 69-05.2-11-02. Any revisions which propose significant alterations to the experimental practice are subject to the notice, hearing, and procedural requirements contained in subdivision a of subsection 5 of section 69-05.2-11-02 and concurrence by the director of the office of surface mining reclamation and enforcement.

History: Effective August 1, 1980; amended effective May 1, 1990; June 1,1997.

General Authority: NDCC 38-14.1-03

Law Implemented: NDCC 38-14.1-03

Chapter 69-05.2-28 Inspection and Enforcement

N.D. Admin. Code 69-05.2-28 Inspection and Enforcement

CHAPTER 69-05.2-28

INSPECTION AND ENFORCEMENT

Section 69-05.2-28-01Inspection and Enforcement - Requests for Inspections 69-05.2-28-02Inspection and Enforcement - Review of Decision Not to Inspect or Enforce - Review of Adequacy and Completeness of Inspections 69-05.2-28-03Inspection and Enforcement - Cessation Order - Affirmative Relief - Modification - Vacation - Termination - Notice to Owners and Controllers 69-05.2-28-04Inspection and Enforcement - Cessation Order - Informal Minesite Hearing 69-05.2-28-05Inspection and Enforcement - Notice of Violation - Remedial Measures - Modification - Vacation - Termination 69-05.2-28-06Inspection and Enforcement - Notice of Violation - Extension of Abatement Period 69-05.2-28-07Inspection and Enforcement - Cessation Order or Notice of Violation - Inability to Comply 69-05.2-28-08Inspection and Enforcement - Suspension or Revocation of Permits - Pattern of Violations 69-05.2-28-09Inspection and Enforcement - Suspension or Revocation of Permits - Orders to Show Cause 69-05.2-28-10Inspection and Enforcement - Minesite Hearing on Requests for Temporary Relief 69-05.2-28-11Inspection and Enforcement - Inspections and Monitoring - Filing Requirements 69-05.2-28-12Inspection and Enforcement - Determination of Amount of Civil Penalty - Factors 69-05.2-28-13Inspection and Enforcement - Civil Penalty - Assessment of Separate Violations for Each Day 69-05.2-28-14Inspection and Enforcement - Civil Penalty - Escrow Account and Bond Procedure 69-05.2-28-15Inspection and Enforcement - Surface Owner Interference 69-05.2-28-16Inspection and Enforcement - Individual Civil Penalty - Notice 69-05.2-28-17Inspection and Enforcement - Individual Civil Penalty - Opportunity for Review 69-05.2-28-18Inspection and Enforcement - Individual Civil Penalty - Payment 69-05.2-28-19Inspection and Enforcement - Inspection of Inactive Surface Coal Mining Operations 69-05.2-28-01. Inspection and enforcement - Requests for inspections.

1.A person may request an inspection of a surface coal mining and reclamation operation by filing a signed, written statement, or making an oral report followed by filing a signed, written statement, which gives the commission reason to believe that any requirement of North Dakota Century Code chapter 38-14.1, this article, or any permit condition, has not been complied with, and including the person's telephone number and address.

2.The identity of any person supplying information to the commission relating to a possible violation or imminent danger or harm will remain confidential, if requested by that person, unless that person elects to accompany the inspector on the inspection, or unless disclosure is required by a court.

3.The commission will notify the person of when the inspection is to occur as far in advance of the inspection as possible. The person may accompany the inspector on the inspection. The person has a right of entry to, upon, and through the operation, but only in the presence of and under the control, direction, and supervision of the inspector.

4.Within ten days of the inspection, or, if there is no inspection, within fifteen days of receipt of the person's written statement, the commission will send the person the following by certified mail:

a.If an inspection was made, a description of the enforcement action taken, which may consist of copies of the inspection report and all notices of violation and cessation orders issued as a result of the inspection, or, an explanation of why no enforcement action was taken.

b.If no inspection was conducted, an explanation of the reason.

c.An explanation of the person's right, if any, to informal review of the action or inaction of the commission.

5.The commission will give copies of all materials in subsection 4 within the time limits specified in that subsection to the permittee or operator alleged to be in violation, except that the name of the citizen will be removed unless disclosure is permitted under subsection 2.

Law Implemented: NDCC 38-14.1-27, 38-14.1-28 69-05.2-28-02. Inspection and enforcement - Review of decision not to inspect or enforce - Review of adequacy and completeness of inspections.

1.Any person who is or may be adversely affected by a surface coal mining and reclamation operation may ask the commission to informally review a decision not to inspect or take appropriate enforcement action with respect to any violation alleged by that person in a filing under section 69-05.2-28-01.

a.The request must be in writing and include a statement of how the person is or may be adversely affected and why the decision merits review.

b.The request must be made within thirty days of the date the person received the materials required by subsection 4 of section 69-05.2-28-01.

2.The commission will conduct the review and inform the person, in writing, of the results within thirty days of the commission's receipt of the request. The permittee or operator alleged to be in violation will also be given a copy of the results, except that the name of the person will not be disclosed unless confidentiality has been waived.

3.Informal review under this section does not affect any right to formal review under North Dakota Century Code section 38-14.1-30, or to a citizen's suit under North Dakota Century Code section 38-14.1-40.

4.Any person who is or may be adversely affected by a surface coal mining and reclamation operation may notify the commission in writing of any alleged failure on the part of the commission to make adequate and complete or periodic inspections.

a.The notification must include sufficient information to create a reasonable belief that the requirements are not being complied with and to demonstrate that the person is or may be adversely affected.

b.The commission will, within fifteen days of receipt of the notification, determine whether the requirements are being complied with, and if not, will immediately order an inspection to remedy the noncompliance.

c.The commission will furnish the complainant with a written statement of the reasons for the determination and any actions taken to remedy the noncompliance.

Law Implemented: NDCC 38-14.1-03 69-05.2-28-03. Inspection and enforcement - Cessation order - Affirmative relief - Modification - Vacation - Termination - Notice to owners and controllers.

1.If a cessation ordered under subdivision a of subsection 1 of North Dakota Century Code

section 38-14.1-28 will not completely abate the imminent danger or harm as quickly as possible, the commission or its authorized representative will impose affirmative obligations on the operator or permittee to abate the condition, practice, or violation. The cessation order will specify the timetable for abatement and any interim steps. The cessation order may also require the use of existing or additional personnel and equipment.

2.Reclamation operations and related activities must continue while a cessation order is in force unless otherwise provided in the order.

3.The commission or its authorized representative may modify, terminate, or vacate a cessation order for good cause and may extend the time for abatement if failure to abate was not caused by lack of diligence by the permittee or operator.

4.The commission or its authorized representative will terminate a cessation order by written notice when all conditions, practices, or violations listed in the order are abated.

5.Termination of a cessation order does not affect the commission's right to assess civil penalties for the violation, condition, or practice for which the order was issued.

6.Surface coal mining operations conducted without a valid permit constitute a condition or practice which causes or can reasonably be expected to cause significant imminent environmental harm to land, air, or water resources, unless the operations are an integral, uninterrupted extension of previously permitted operations, and the person conducting them has filed a timely and complete permit application.

7.Within sixty days after issuing a cessation order, the commission will notify in writing any person identified under subsection 3 of section 69-05.2-10-05 and subdivisions e and f of subsection 1 of section 69-05.2-06-01 as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

History: Effective August 1, 1980; amended effective May 1, 1990; May 1,1992; July 1, 1995. 69-05.2-28-04. Inspection and enforcement - Cessation order - Informal minesite hearing.

1.A notice of violation which requires cessation of mining either expressly or by necessary implication or any cessation order issued under subsection 1 of North Dakota Century Code

section 38-14.1-28 will expire within thirty days of actual notice to the operator or permittee unless an informal public minesite hearing is held within that time. An informal public minesite hearing will be automatically scheduled by the commission and held within thirty days of the issuance of the cessation order unless the hearing is waived, in writing, by the operator or permittee.

2.The informal public minesite hearing will be held at or reasonably close to the minesite in order to allow viewings of the site during the hearing, or at any other location acceptable to the commission and the operator or permittee.

3.A notice of violation or cessation order will not expire as provided in subsection 1, if the condition, practice, or violation in question has been abated or if the informal public minesite hearing has been waived.

4.The commission will give as much advance notice as is practicable of the time, place, and subject of the informal public minesite hearing to:

a.The operator or permittee; and

b.Any person who filed a report which led to the issuance of that notice of violation or cessation order.

5.The commission will post notice of the hearing in its offices and publish notice, where practicable, in the official county newspaper of each county where the operation is located and in other daily newspapers of general circulation in the area of the mine.

6.An informal public minesite hearing is not a formal hearing under North Dakota Century Code

section 38-14.1-30. The hearing will be conducted by a representative of the commission other than the person who initiated the notice of violation or cessation order, who may accept oral or written arguments and any other relevant information from any person attending.

7.Within five days after the close of the informal public minesite hearing, the commission or its authorized representative will affirm, modify, or vacate the notice of violation or cessation order in writing. The decision will be sent to the persons identified in subsection 4.

8.Procedures of this section do not affect the right of any operator or permittee to a formal hearing under North Dakota Century Code section 38-14.1-30. A request for a formal hearing must be made within the time prescribed in that section to preserve the right to formal administrative review of the notice or order. However, there is no right to request review of the commission's decision on an informal public minesite hearing. 69-05.2-28-05. Inspection and enforcement - Notice of violation - Remedial measures - Modification - Vacation - Termination.

1.A notice of violation issued under subdivision b of subsection 1 of North Dakota Century Code

section 38-14.1-28 may include any remedial action required, interim steps, if appropriate, and the time for accomplishment of any interim steps.

2.The commission or its authorized representative may modify, vacate, or terminate a notice of violation for good cause.

3.The commission or its authorized representative will terminate a notice of violation by written notice when all violations listed in the notice are abated.

4.Termination of a notice of violation does not affect the commission's right to assess civil penalties for the violation for which the notice was issued. 69-05.2-28-06. Inspection and enforcement - Notice of violation - Extension of abatement period.

The commission or its authorized representative may extend the time for abatement or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by lack of diligence on the part of the permittee or operator. The total time for abatement may not exceed ninety days from the date of issuance. 69-05.2-28-07. Inspection and enforcement - Cessation order or notice of violation - Inability to comply.

1.Inability to comply will not be considered grounds for vacating a cessation order or notice of violation.

2.Inability to comply may not be considered in determining whether a pattern of violations exists.

3.Unless caused by lack of diligence, inability to comply may be considered only in mitigation of the amount of civil penalty and of the duration of permit suspension.

Law Implemented: NDCC 38-14.1-28, 38-14.1-30, 38-14.1-32 69-05.2-28-08. Inspection and enforcement - Suspension or revocation of permits - Pattern of violations.

1.The commission may determine that a pattern of violations exists or has existed, based on two or more inspections within any twelve-month period, after considering the circumstances, including:

a.The number of violations, cited on more than one occasion, of the same or related requirements of North Dakota Century Code chapter 38-14.1, this article, or the conditions of the permit;

b.The number of violations, cited on more than one occasion, of different requirements of North Dakota Century Code chapter 38-14.1, this article, or the conditions of the permit; or

c.The extent to which the violations were isolated departures from lawful conduct.

2.The commission will determine that a pattern of violations exists, if it finds that there were violations of the same or related requirements of North Dakota Century Code chapter 38-14.1, this article, or the permit conditions during three or more inspections within any twelve-month period.

3.Violations by any person or operator conducting surface coal mining operations on behalf of the permittee will be attributed to the permittee, unless the permittee establishes that the violations were acts of deliberate sabotage.

4.Whenever a permittee fails to abate a violation within the abatement period set or subsequently extended, the commission will review the permittee's history of violations to determine if a pattern of violations exists under this section, and issue an order to show cause as appropriate under subdivision c of subsection 1 of North Dakota Century Code section 38-14.1-28. 69-05.2-28-09. Inspection and enforcement - Suspension or revocation of permits - Orders to show cause.

1.The commission may decline to issue an order to show cause, or may vacate an outstanding order to show cause, if the commission finds that, taking into account exceptional factors present, it would be demonstrably unjust to issue or to fail to vacate the order to show cause.

The basis for this finding must be fully explained and documented in the records of the case.

2.Following the public hearing on an order to show cause, the commission may issue an order suspending a permit.

a.The order for permit suspension may be for a fixed or an indefinite term and include conditions for reinstatement.

b.A permit may be reinstated upon completion of a fixed term, provided the permittee demonstrates compliance with any conditions for reinstatement. If the permittee has not complied with the conditions, the commission may extend the suspension for an additional fixed term, suspend the permit indefinitely, or institute proceedings for revocation.

c.If a permit has been indefinitely suspended, the permittee may request reinstatement at any time. The commission may reinstate the permit, provided the permittee demonstrates compliance with any conditions for reinstatement.

d.The commission may, at any time and on its own motion, reinstate a permit that has been indefinitely suspended, or, institute proceedings for revocation.

e.Permit suspension shall not result in bond forfeiture unless the permit is subsequently revoked.

f.Reclamation operations, except as specified by the commission, must continue during suspension. However, all mining operations within the permit area must cease until the permit is reinstated.

3.If proceedings for permit revocation are instituted, the commission will issue an order to show cause why the permit should not be revoked under subdivision c of subsection 1 of North Dakota Century Code section 38-14.1-28. An opportunity for a hearing on the order to show cause will be provided under subsection 2 of North Dakota Century Code section 38-14.1-30.

Law Implemented: NDCC 38-14.1-28, 38-14.1-30 69-05.2-28-10. Inspection and enforcement - Minesite hearing on requests for temporary relief.

A minesite hearing will be held on all requests for temporary relief filed under subsection 4 of North Dakota Century Code section 38-14.1-30 before relief may be granted. Temporary relief will not be granted if the provisions of subdivisions b and c of subsection 4 of North Dakota Century Code section 38-14.1-30 have not been met. If the commission and all parties agree, the hearing may be held at a location other than at the minesite.

Law Implemented: NDCC 38-14.1-30 69-05.2-28-11. Inspection and enforcement - Inspections and monitoring - Filing requirements.

1.Copies of all records, reports, inspection materials, or information required by subsection 5 of North Dakota Century Code section 38-14.1-27 prepared by the commission, operator, or permittee must be promptly filed by the preparer in the county auditor's office where the operations occur.

2.Copies of all records, reports, inspection materials, or information obtained by the commission will be made immediately available to the public until at least five years after final bond release, except for information exempt from disclosure under subsection 3 of North Dakota Century Code section 38-14.1-13.

General Authority: NDCC 38-14.1-27

Law Implemented: NDCC 38-14.1-27 69-05.2-28-12. Inspection and enforcement - Determination of amount of civil penalty - Factors.

In determining the amount of any civil penalty assessed under subsection 1 of North Dakota Century Code section 38-14.1-32, the commission will consider the following:

1.History of previous violations. The commission may assess a civil penalty of up to three thousand five hundred dollars per day based on the history of previous violations by the operator or permittee at the particular operation.

a.If a violation is under review or if the time for review has not yet expired, the violation will not be considered.

b.No violation for which the notice of violation or cessation order has been vacated is considered.

c.Each violation is considered without regard to whether it led to a civil penalty.

2.Seriousness. The commission may assess a civil penalty of up to three thousand five hundred dollars per day based on the seriousness of the violation, including any irreparable harm to the environment and any hazard to public health or safety. The commission will consider:

a.The probability of the occurrence of the event which a violated standard is designed to prevent.

b.The extent of the potential or actual damage, in terms of area and impact on the public or environment.

c.The extent to which enforcement is obstructed by the violation.

d.The actual or potential duration of the damage or the impact on the public or the environment.

3.Negligence. The commission may assess a civil penalty of up to three thousand dollars per day based on the degree of fault of the operator or permittee in causing or failing to correct the violation, condition, or practice which led to the notice or order, either through act or omission.

a.A violation which occurs through no negligence, or, an inadvertent violation that was unavoidable by the exercise of reasonable care, is not considered.

b.A civil penalty of up to one thousand five hundred dollars per day may be assessed for a violation caused by negligence, or the failure of an operator or permittee to prevent the occurrence of any violation of his permit or any requirement of North Dakota Century Code chapter 38-14.1 or this article, due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate the violation due to indifference, lack of diligence, or lack of reasonable care.

c.A civil penalty of up to three thousand dollars per day may be assessed for a violation which occurs through a greater degree of fault than negligence, or through reckless, knowing, or intentional conduct.

4.Good faith in attempting to achieve compliance. The commission may deduct up to one thousand dollars per day from the total civil penalty assessed based on the demonstrated good faith of the operator or permittee charged in attempting to achieve rapid compliance after notification of the violation.

a."Rapid compliance" means that the operator or permittee took extraordinary measures to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement.

b.No deduction will be made for normal compliance, which is abatement of the violation within the time set for abatement. 69-05.2-28-13. Inspection and enforcement - Civil penalty - Assessment of separate violations for each day.

Whenever a violation has not been abated within the period set, a civil penalty of not less than seven hundred fifty dollars will be assessed for each day of the failure, except that if the operator or permittee initiates review proceedings with respect to the violation, the abatement period will be extended as follows:

1.If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding under subsection 4 of North Dakota Century Code section 38-14.1-30, after a determination that the operator or permittee will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement will not end until the date on which the commission issues a final order; and

2.If the operator or permittee initiates review proceedings under North Dakota Century Code

section 38-14.1-35 with respect to the violation, in which the obligations to abate are suspended by the court, the daily assessment of a penalty will not be made for any period before entry of a final order by the court.

Law Implemented: NDCC 38-14.1-30, 38-14.1-32, 38-14.1-35 69-05.2-28-14. Inspection and enforcement - Civil penalty - Escrow account and bond procedure.

1.Upon receipt of a timely request for a formal hearing by an operator or permittee under subsection 1 of North Dakota Century Code section 38-14.1-30, the commission will inform the operator or permittee, by certified mail, of the proposed amount of any civil penalty which may be assessed by the commission.

2.The operator or permittee shall then either pay the amount of the proposed penalty in full within thirty days and withdraw the request for a formal hearing, forward the amount of the proposed penalty to the commission within thirty days to be held in escrow pending a final commission decision on the violation and the amount of the penalty, or post a bond within thirty days with the commission payable to the state in the amount of the proposed penalty pending a final commission decision on the violation and the amount of the penalty.

3.If the operator or permittee requests review of a final commission decision under North Dakota Century Code section 38-14.1-35, the amount of the proposed penalty must continue to be held in escrow, or the bond must remain in full force and effect, until completion of review.

4.Except as provided in subsection 5, if the operator or permittee does not request review of a final commission decision under North Dakota Century Code section 38-14.1-35, the following procedures apply:

a.If the amount of the proposed penalty had been forwarded to the commission to be held in escrow, the escrow must end and the escrowed funds transferred to the commission in payment of the penalty; or

b.If a bond has been posted, the operator or permittee shall pay the amount of the penalty within thirty days after the assessment is mailed or the bond shall be forfeited.

5.If the final commission decision, or of the court on review, results in a reduction or an elimination of the amount of the proposed penalty, the commission will either refund all or part of the escrowed amount, with interest at the legal rate from the date of payment into escrow to the date of refund, or release all or part of the bond.

6.If the operator or permittee had previously forwarded the amount of the proposed penalty to the commission to be held in escrow and if the final decision of the commission results in an increase in the amount of the penalty, the operator or permittee shall pay the difference within thirty days after the assessment is mailed, unless judicial review is requested.

7.If the operator or permittee has failed to file a timely request for a formal hearing under subsection 1 of North Dakota Century Code section 38-14.1-30, the amount of any civil penalty will be incorporated in a final order of the commission as provided in subdivision b of subsection 1 of North Dakota Century Code section 38-14.1-29. The order will require the operator or permittee to pay the civil penalty within thirty days after the order is mailed.

Law Implemented: NDCC 38-14.1-29, 38-14.1-30 69-05.2-28-15. Inspection and enforcement - Surface owner interference.

The surface owner is prohibited from interfering with reclamation procedures as long as the procedures form a part of a commission-approved reclamation plan.

Law Implemented: NDCC 38-14.1-03 69-05.2-28-16. Inspection and enforcement - Individual civil penalty - Notice.

Where appropriate, the commission may assess an individual civil penalty under subsection 6 of North Dakota Century Code section 38-14.1-32. The commission will serve notice, consistent with

rule 4 of the North Dakota Rules of Civil Procedure for service of a summons and complaint, on each person to be assessed an individual civil penalty. The notice will include an explanation of the reasons for the penalty, the amount to be assessed, a copy of any underlying notice of violation and cessation order, and an opportunity for formal hearing under North Dakota Century Code section 38-14.1-30. 69-05.2-28-17. Inspection and enforcement - Individual civil penalty - Opportunity for review.

The notice of proposed individual civil penalty assessment issued by the commission will become final thirty days after service unless:

1.The individual requests a formal hearing under North Dakota Century Code section 38-14.1-30; or

2.The commission and the individual or responsible corporate permittee agree within thirty days to a schedule or plan for the abatement or correction of the violation, failure, or refusal. 69-05.2-28-18. Inspection and enforcement - Individual civil penalty - Payment.

1.If a notice of proposed individual civil penalty assessment becomes final in the absence of a request for formal hearing or abatement agreement, the penalty is due upon issuance of the final order.

2.If an individual named in a notice of proposed individual civil penalty assessment requests a formal hearing under North Dakota Century Code section 38-14.1-30, the penalty is due upon a final order affirming, increasing, or decreasing the proposed penalty.

3.Where the commission and corporate permittee or individual have agreed in writing on a plan for the abatement of or compliance with the unabated order, an individual named in the notice may postpone payment until receiving either a final order or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn. 69-05.2-28-19. Inspection and enforcement - Inspection of inactive surface coal mining operations.

The commission will conduct an average of at least one complete inspection per calendar quarter of each inactive surface coal mining operation. Partial inspections of inactive mines will be conducted as deemed necessary. For the purposes of this section, an inactive surface coal mining operation is one for which:

1.Surface coal mining operations have permanently ceased and all disturbed areas have been reclaimed and vegetation has been established in accordance with the approved reclamation plan and the lands are not contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by section 69-05.2-16-04; or

2.The commission has granted partial bond release for the disturbed areas pursuant to subsection 7 of section 69-05.2-12-12.

History: Effective May 1, 1999.

Law Implemented: NDCC 38-14.1-27

Chapter 69-05.2-29 Small Operator Assistance

N.D. Admin. Code 69-05.2-29 Small Operator Assistance

CHAPTER 69-05.2-29

SMALL OPERATOR ASSISTANCE

Section 69-05.2-29-01Small Operator Assistance - Responsibilities of the Commission 69-05.2-29-02Small Operator Assistance - Program Services 69-05.2-29-03Small Operator Assistance - Eligibility for Assistance 69-05.2-29-04Small Operator Assistance - Filing for Assistance 69-05.2-29-05Small Operator Assistance - Application Approval - Notice of Denial 69-05.2-29-06Small Operator Assistance - Data Requirements 69-05.2-29-07Small Operator Assistance - Assistance Funding 69-05.2-29-08Small Operator Assistance - Applicant Liability 69-05.2-29-01. Small operator assistance - Responsibilities of the commission.

The commission will:

1.Review requests for assistance and determine qualified operators.

2.Develop and maintain a list of qualified public or private entities as required by 30 CFR 795.10 and pay them for services rendered.

3.Conduct periodic onsite evaluations of program activities with participating operators.

4.Participate in data coordination with the office of surface mining reclamation and enforcement, United States geological survey, United States environmental protection agency, and other appropriate agencies or institutions.

5.Ensure that applicable equal opportunity in employment provisions are included in contract or other procurement documents.

History: Effective August 1, 1980; amended effective May 1, 1990; October 1,1994. 69-05.2-29-02. Small operator assistance - Program services.

To the extent possible with available funds, the commission will for qualified small operators who request assistance:

1.Select and pay a qualified public or private entity to perform the activities described under subsection 2 of North Dakota Century Code section 38-14.1-37 including:

a.A determination of the probable hydrologic consequences of the mining and reclamation operations both on and off the proposed permit area according to section 69-05.2-29-06.

b.The preparation of a statement of the results of test borings or core samplings according to section 69-05.2-29-06.

2.Collect and provide general hydrologic information on the basin or subbasin areas within which the anticipated mining will occur. The information provided will be limited to that required to relate the basin or subbasin hydrology to the hydrology of the proposed permit area.

History: Effective August 1, 1980; amended effective May 1, 1990; October 1,1994. 69-05.2-29-03. Small operator assistance - Eligibility for assistance.

An applicant is eligible for assistance if the applicant:

1.Intends to apply for a permit under North Dakota Century Code chapter 38-14.1.

2.Establishes that the probable total actual and attributed production for eachyear of the permit will not exceed three hundred thousand tons [272155.41 metric tons]. Production from the following will be attributed to the permittee:

a.All coal produced by operations beneficially owned entirely by the applicant or controlled, by reason of ownership, direction of the management or in any other manner, by the applicant.

b.The pro rata share, based upon percentage of beneficial ownership, of coal produced by operations in which the applicant owns more than a ten percent interest.

c.All coal produced by persons who own more than ten percent of the applicant or who, directly or indirectly, control the applicant by reason of stock ownership, direction of the management, or in any other manner.

d.The pro rata share of coal produced by operations owned or controlled by the person who owns or controls the applicant.

e.All coal produced by operations owned by members of the applicant's family or relatives unless it is established that there is no direct or indirect business relationship between or among them.

3.Is not restricted in any manner from receiving a permit.

4.Does not organize or reorganize the applicant's company solely for the purpose of obtaining assistance under the small operator assistance program.

5.Will be required to pay reclamation fees under the Surface Mining Control and Reclamation Act of 1977 [Pub. L. 95-87; 91 Stat. 445; 30 U.S.C. 1202 et seq.].

History: Effective August 1, 1980; amended effective May 1, 1990; October 1,1994; May 1, 2001. 69-05.2-29-04. Small operator assistance - Filing for assistance.

Each applicant for the small operator assistance program shall submit to the commission:

1.A statement of intent to file a permit application.

2.The names and addresses of:

a.The potential applicant.

b.The potential operator if different from the applicant.

3.A schedule of the estimated total coal production from the proposed permit area and all other locations from which production is attributed to the applicant under section 69-05.2-29-03.

Include for each location:

a.The name under which coal is or will be mined.

b.The permit number.

c.The actual coal production for the year preceding the application for assistance and that portion of the production attributed to the applicant.

d.The estimated coal production for each year of the proposed permit and that portion attributed to the applicant.

4.A description of:

a.The surface coal mining operation.

b.The anticipated starting and termination dates of mining operations.

c.The number of acres [hectares] of land to be affected by the proposed mining.

d.A general statement on the probable depth and thickness of the coal resource , including a determination of reserves in the permit area and how they were calculated.

5.A topographic map of 1:24,000 scale or larger which clearly shows:

a.The area to be affected and the natural drainage above and below it.

b.The names of property owners within and adjacent to the area to be affected.

c.The location of existing structures and developed water sources within and adjacent to the area to be affected.

d.The location of existing and proposed test boring or core samplings.

e.The location and extent of known abandoned underground mines.

6.Copies of documents which show that:

a.The applicant has a legal right to enter and commence mining within the permit area.

b.A legal right of entry has been obtained for the commission and personnel from a qualified public or private entity to inspect the lands to be mined and adjacent lands which may be affected to collect environmental data or install necessary instruments.

History: Effective August 1, 1980; amended effective May 1, 1990; October 1,1994. 69-05.2-29-05. Small operator assistance - Application approval - Notice of denial.

1.If the commission finds the applicant eligible, and it does not have information readily available which would preclude issuance of a mining permit, it will:

a.Determine the minimum data requirements necessary to meet the provisions of section 69-05.2-29-06.

b.Select the services of one or more qualified public or private entities to perform the required work. A copy of the contract or other appropriate work order and the final approved report will be provided to the applicant.

2.The commission will inform the applicant in writing if the application is denied and shall state the reasons for denial.

3.The granting of assistance under this part will not be a factor in commission decisions on a subsequent permit application.

History: Effective August 1, 1980; amended effective May 1, 1990; October 1,1994. 69-05.2-29-06. Small operator assistance - Data requirements.

1.The commission will determine the minimum data collection requirements for each applicant or group of applicants. Data collection and analysis may proceed concurrently with the development of mining and reclamation plans. The data requirements will be based on:

a.The extent of currently available hydrologic, geologic, and other information described under subsection 2 of North Dakota Century Code section 38-14.1-37.

b.The data collection and analysis guidelines developed and provided by the commission.

2.A determination of the probable hydrologic consequences of the mining and reclamation operations, both onsite and offsite, shall be made by a qualified public or private entity. The data for this determination shall include the following:

a.The existing and projected surface and ground water seasonal flow regime, including water level and water table evaluations. The commission will specify duration and return frequencies to be used in the determination.

b.The existing and projected seasonal quality of the surface and ground water regime. This must include measurements and estimates of dissolved and suspended solids, pH, iron, manganese, surface and channel erosion, and other water quality parameters specified by the commission.

3.A statement of the result of test borings or core samplings from the proposed permit area including:

a.Logs from any drill holes including identification of each stratum and water level penetrated.

b.The coal seam thickness and its chemical analysis including sulfur content.

c.The chemical analysis of potentially toxic or toxic-forming sections of the overburden, and the chemical analysis of the stratum lying immediately underneath the coal to be mined.

4.The statement by a qualified public or private entity under subsection 3 may be waived by the commission by a written determination that the requirements are unnecessary with respect to the specific application.

5.Data collected under the small operator assistance program will be made available to all interested persons, except information related to the chemical and physical properties of coal.

Information regarding the mineral or elemental content of the coal which is potentially toxic in the environment will be made available.

History: Effective August 1, 1980; amended effective May 1, 1990; October 1,1994. 69-05.2-29-07. Small operator assistance - Assistance funding.

1.Funds authorized for the small operator assistance program may not be used to cover state administrative costs.

2.The commission will, to the extent practicable, establish a formula for allocating funds among eligible small operators if available funds are insufficient. This formula will include such factors as the applicant's:

a.Anticipated date of filing a permit application.

b.Anticipated date for commencing mining.

c.Performance history.

History: Effective August 1, 1980; amended effective May 1, 1990; October 1,1994. 69-05.2-29-08. Small operator assistance - Applicant liability.

1.The applicant shall reimburse the commission for the cost of all services rendered under this

chapter if:

a.The applicant submits false information.

b.The applicant fails to submit a permit application within one year after receiving the approved report from the qualified public or private entity.

c.The applicant fails to mine after obtaining a permit.

d.The commission finds that the operator's actual and attributed annual production of coal for all locations exceeds three hundred thousand tons [272155.41 metric tons] during the twelve months immediately following the date the operator is issued a surface coal mining and reclamation permit.

e.The applicant sells, transfers, or assigns the permit to another person and the transferee's total actual and attributed production exceeds the three hundred thousand-ton [272155.41 metric-ton] annual production limit during any consecutive twelve-month period of the remaining permit term. Under this subdivision, the applicant and successor are jointly and severally obligated to reimburse thecommission.

2.The commission may waive the reimbursement obligation under the conditions described in subdivisions b and c of subsection 1 if it finds that the applicant at all times acted in good faith.

History: Effective August 1, 1980; amended effective May 1, 1990; October 1,1994.

Chapter 69-05.2-30 Off-Permit Use of Other Minerals

N.D. Admin. Code 69-05.2-30 Off-Permit Use of Other Minerals

CHAPTER 69-05.2-30

OFF-PERMIT USE OF OTHER MINERALS

Section 69-05.2-30-01Off-Permit Use of Other Minerals 69-05.2-30-01. Off-permit use of other minerals.

Solid, noncoal mineral resources found in the permit area may be used for nondetrimented purposes outside the permit area after obtaining commission approval. Each operator or permittee shall submit a plan and map showing:

1.Name and address of the applicant.

2.Permit number.

3.Mineral identification, estimated volume, location before and after removal, proposed use, and method of transport.

4.Any impact the removal will have on the reclamation potential of the area.

5.Whether the use is temporary or permanent.

6.Chemical and physical characteristics that the commission may require for material other than sand, gravel, and porcelanite.

7.The name and address of the owner or owners of record of the other minerals, as well as proof, consisting of certified copies of the relevant lease agreements, of the operator's legal right to remove them.

8.A statement identifying all applicable statutory requirements and how the applicant plans to comply with them.

History: Effective August 1, 1980; amended effective May 1, 1990.

General Authority: NDCC 38-14.1-03

Law Implemented: NDCC 38-14.1-03

Chapter 69-05.2-31 Training, Examination, and Certification of Blasters

N.D. Admin. Code 69-05.2-31 Training, Examination, and Certification of Blasters

CHAPTER 69-05.2-31

TRAINING, EXAMINATION, AND CERTIFICATION OF BLASTERS

Section 69-05.2-31-01Training of Blasters 69-05.2-31-02Examination of Blasters 69-05.2-31-03Certification of Blasters 69-05.2-31-04Training, Examination, and Certification of Blasters - Enforcement 69-05.2-31-01. Training of blasters.

1.Persons seeking to become certified as blasters shall receive training including the technical aspects of blasting operations and state and federal laws governing the storage, transportation, and use of explosives. Coursework must provide training in and discuss practical applications of:

a.Explosives, including:

(1)Selection of the type of explosives to be used.

(2)Determination of the properties of explosives which will produce desired results at an acceptable level of risk.

(3)Handling, transportation, and storage.

b.Blast designs, including:

(1)Geological and topographic considerations.

(2)Design of a blasthole, with critical dimensions.

(3)Pattern design, field layout, and timing of blastholes.

(4)Field applications.

c.Loading blastholes, including priming and boostering.

d.Initiation systems and blasting machines.

e.Blasting vibrations, airblast, and flyrock, including:

(1)Monitoring techniques.

(2)Methods to control adverse effects.

f.Secondary blasting applications.

g.Current state and federal laws and rules applicable to the use of explosives.

h.Blast records.

i.Schedules.

j.Preblasting surveys, including:

(1)Availability.

(2)Coverage.

(3)Use of in-blast design.

k.Blast-plan requirements.

l.Certification and training.

m.Signs, warning signals, and site control.

n.Unpredictable hazards, including:

(1)Lightning.

(2)Stray currents.

(3)Radio waves.

(4)Misfires.

2.Persons who are not certified and who are assigned to a blasting crew or assist in the use of explosives shall receive direction and on-the-job training from a blaster.

3.Training courses must be given by competent, experienced persons at a frequency not to exceed one every three months. Courses developed and taught by coal mining industry personnel may be approved by the commission for training persons seeking to become certified blasters. 69-05.2-31-02. Examination of blasters.

The commission will ensure that candidates for blaster certification are examined by reviewing and verifying:

1.The competence of persons directly responsible for the use of explosives in surface coal mining operations through a written examination in technical aspects of blasting and state and federal laws and rules governing the storage, use, and transportation of explosives including the topics set forth in subsection 1 of section 69-05.2-31-01; and

2.The practical field experience of the candidates as necessary to qualify a person to accept the responsibility for blasting operations in surface coal mining operations. Such experience must demonstrate that the candidate possesses practical knowledge of blasting techniques, understands the hazards involved in the use of explosives, and otherwise has exhibited a pattern of conduct consistent with the acceptance of responsibility for blasting operations. 69-05.2-31-03. Certification of blasters.

1.Candidates for blaster certification examined and found satisfactory will be certified for a period of three years.

2.Recertification is authorized following either reexamination or a demonstration of satisfactory participation in a blaster-related refresher course during the term of the certification, except that a candidate whose certificate has been suspended or revoked may only be recertified following reexamination.

3.No blaster may be recertified two consecutive times unless, upon the second application, the applicant successfully passes the examination required in section 69-05.2-31-02.

4.Certified blasters shall take every reasonable precaution to protect their certificates from loss, theft, or unauthorized duplication. Any such occurrence must be reported immediately to the commission.

5.The conditions for maintaining certification include:

a.Presentation of the blaster's certificate to the commission or its authorized representative upon request.

b.Blaster's certificates may not be assigned or transferred.

c.Blasters may not delegate their responsibility to any individual who is not a certified blaster. 69-05.2-31-04. Training, examination, and certification of blasters - Enforcement.

1.The commission may, and upon a finding of willful misconduct, will suspend or revoke the certification of a blaster during the term of the certification or take any other necessary action for any of the following reasons:

a.Noncompliance with any order of the commission.

b.Unlawful use in the work place of, or current addiction to, alcohol, narcotics, or other dangerous drugs.

c.Violation of any provision of the state or federal explosives laws or rules.

d.Providing false information or a misrepresentation to obtain certification.

2.Notice and opportunity for hearing must be given prior to the suspension or revocation unless it is not practicable, in which case notice and hearing must be provided as soon as practicable after the suspension, revocation, or other adverse action.

3.Upon notice of a revocation, the blaster shall immediately surrender the revoked certificate to the commission.

Chapter 69-05.2-32 Improvidently Issued Permits

N.D. Admin. Code 69-05.2-32 Improvidently Issued Permits

CHAPTER 69-05.2-32

IMPROVIDENTLY ISSUED PERMITS

Section 69-05.2-32-01Improvidently Issued Permits - Review Procedures 69-05.2-32-02Improvidently Issued Permits - Remedial Measures 69-05.2-32-03Improvidently Issued Permits - Recission Procedures 69-05.2-32-01. Improvidently issued permits - Review procedures.

The commission will review any permit it has reason to believe was improvidently issued according to the criteria in this section. The permit was improvidently issued if:

1.Under the violations review criteria of the regulatory program at the time the permit was issued:

a.The commission should not have issued the permit because of an unabated violation or a delinquent penalty or fee; or:

b.The permit was issued on the presumption that a notice of violation was being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order was subsequently issued;

2.The penalty, violation, or fee:

a.Remains unabated or delinquent; and

b.Is not the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; and

3.Where the permittee was linked to the violation, penalty, or fee through ownership or control, under the violations review criteria of the regulatory program at the time the permit was issued an ownership or control link between the permittee and the person responsible for the violation, penalty, or fee still exists, or where the link was severed the permittee continues to be responsible for the violation, penalty, or fee. 69-05.2-32-02. Improvidently issued permits - Remedial measures.

In the event of an improvidently issued permit, the commission will employ one or more of the following:

1.Implement, with the cooperation of the permittee or person responsible, and the responsible agency, a plan for abating the violation or a schedule for paying the penalty or fee.

2.Impose a permit condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee.

3.Suspend the permit until the violation is abated or the penalty or fee is paid.

4.Rescind the permit according to section 69-05.2-32-03. 69-05.2-32-03. Improvidently issued permits - Recission procedures.

The commission will serve on the permittee a notice of proposed suspension and recission which includes the reasons for finding that the permit was improvidently issued. The notice will also state that:

1.The permit will automatically be suspended after a specified period of time not to exceed ninety days, and will be rescinded after an additional period of time not to exceed ninety days, unless within those periods the permittee submits proof and the commission finds that:

a.The commission finding under section 69-05.2-32-01 was erroneous;

b.The permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee to the satisfaction of the responsible agency;

c.The violation, penalty, or fee is the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; or

d.Since the finding was made, the permittee has severed any ownership or control link with the person responsible for, and does not continue to be responsible for, the violation, penalty, or fee.

2.After permit suspension or recission, the permittee shall cease all surface coal mining and reclamation operations under the permit, except for violation abatement and for reclamation and other necessary environmental protection measures.

3.The permittee may file an appeal for administrative review of the notice under North Dakota Century Code section 38-14.1-30.

Article 69-05.3 Abandoned Mine Land Reclamation

Chapter 69-05.3-01 Abandoned Mine Land Reclamation

N.D. Admin. Code 69-05.3-01 Abandoned Mine Land Reclamation

ARTICLE 69-05.3

ABANDONED MINE LAND RECLAMATION

Chapter 69-05.3-01Abandoned Mine Land Reclamation

CHAPTER 69-05.3-01

ABANDONED MINE LAND RECLAMATION

Section 69-05.3-01-01Definitions 69-05.3-01-02Eligible Lands and Water - Bond Forfeiture 69-05.3-01-03Abandoned Mine Reclamation Plan - Reclamation Project Evaluation - Factors 69-05.3-01-04Reclamation Contracts 69-05.3-01-05Extraction of Remaining Coal Deposits 69-05.3-01-06Affected Lands - Right of Entry - Notice 69-05.3-01-07Consent to Entry 69-05.3-01-08Entry for Studies or Exploration - Notice 69-05.3-01-09Entry for Emergency Reclamation 69-05.3-01-10Land Acquisition - Limitations 69-05.3-01-11Land Acquisition - Procedures 69-05.3-01-12Acceptance of Gifts of Land 69-05.3-01-13Management of Acquired Lands 69-05.3-01-14Disposition of Acquired Lands 69-05.3-01-15Appraisals 69-05.3-01-01. Definitions.

1."Emergency" means a sudden danger or impairment that presents a high probability of substantial physical harm to the health, safety, or general welfare of people before the danger can be abated under normal abandoned mine reclamation program procedures.

2."Reclamation activities" means reclamation, abatement, control, or prevention of adverse effects of mining.

Law Implemented: NDCC 38-14.2-02 69-05.3-01-02. Eligible lands and water - Bond forfeiture.

In addition to the lands covered by North Dakota Century Code section 38-14.2-06, lands and water are eligible for reclamation activities if there is no continuing responsibility for reclamation by an operator or permittee under North Dakota Century Code chapter 38-14.1 as the result of bond forfeiture. Bond forfeiture will render lands or water ineligible only if the amount forfeited is sufficient to pay the total cost of the necessary reclamation.

Law Implemented: NDCC 38-14.2-02 69-05.3-01-03. Abandoned mine reclamation plan - Reclamation project evaluation - Factors.

Proposed reclamation projects and completed reclamation work shall be evaluated in terms of the factors stated in this section. The factors shall be used to determine whether or not proposed reclamation will be undertaken and to assign priorities to proposals intended to meet the same objective under North Dakota Century Code section 38-14.2-07. Completed reclamation shall be evaluated in terms of the factors set forth below as a means of identifying conditions which should be avoided, corrected, or improved in plans for future reclamation work. The factors shall include:

1.The need for reclamation work to accomplish one or more specific reclamation objectives as stated in North Dakota Century Code section 38-14.2-07.

2.The availability of technology to accomplish the reclamation work with reasonable assurance of success. In the case of research and demonstration projects, the research capability and plans shall provide reasonable assurance of beneficial results without residual adverse impacts.

3.The specific benefits of reclamation which are desirable in the area in which the work will be carried out. Benefits to be considered include but are not limited to:

a.Protection of human life, health, or safety.

b.Protection of the environment, including air and water quality, abatement of erosion and sedimentation, fish, wildlife, and plant habitat, visual beauty, historic or cultural resources, and recreation resources.

c.Protection of public or private property.

d.Improvement of environmental conditions which may be considered to generally enhance the quality of human life.

e.Improvement of the use of natural resources, including postreclamation land uses which:

(1)Increase the productive capability of the land to be reclaimed.

(2)Enhance the use of surrounding lands consistent with existing land use plans.

(3)Provide for construction or enhancement of public facilities.

(4)Provide for residential, commercial, or industrial developments consistent with the needs and plans of the community in which the site is located.

f.Demonstration to the public and industry of methods and technologies which can be used to reclaim areas disturbed by mining.

4.The acceptability of any additional adverse impacts to people or the environment that will occur during or after reclamation and of uncorrected conditions, if any, that will continue to exist after reclamation.

5.The costs of reclamation. Consideration shall be given to both the economy and efficiency of the reclamation work and to the results obtained or expected as a result of reclamation.

6.The availability of additional coal or other mineral or material resources within the project area which:

a.Results in a reasonable probability that the desired reclamation will be accomplished during the process of future mining; or

b.Requires special consideration to assure that the resource is not lost as a result of reclamation and that the benefits of reclamation are not negated by subsequent, essential resource recovery operations.

7.The acceptability of postreclamation land uses in terms of compatibility with land uses in the surrounding area, consistency with applicable state and local land use plans and laws, and the needs and desires of the community in which the project is located.

8.The probability of postreclamation management, maintenance, and control of the area consistent with the reclamation completed.

Law Implemented: NDCC 38-14.2-02, 38-14.2-03, 38-14.2-07 69-05.3-01-04. Reclamation contracts.

The commission may enter into any public and private contractual agreements deemed necessary to effectively accomplish the purposes of the abandoned mine reclamation program, including contracts for:

1.Reclamation and restoration of land and water resources;

2.Construction and construction inspection;

3.Operation and maintenance of facilities;

4.Planning and engineering;

5.Research and demonstration projects;

6.Extraction of remaining coal deposits; and

7.Such other purposes as the commission deems necessary.

Law Implemented: NDCC 38-14.2-03 69-05.3-01-05. Extraction of remaining coal deposits.

In order to maximize resource recovery, the commission may require the extraction of any remaining coal deposits in areas to be reclaimed under North Dakota Century Code chapter 38-14.2, and may enter into a contractual agreement with the owner of the coal, if necessary, subject to the following conditions:

1.Extraction must be performed by a qualified contractor approved by the commission;

2.Extraction must comply with the applicable performance standards of North Dakota Century Code section 38-14.1-24 as specified by the commission in the agreement;

3.Compensation may be paid to the owner of the coal, if warranted, under such terms and conditions as the commission may prescribe; and

4.Such other conditions as the commission may prescribe in the agreement.

Law Implemented: NDCC 38-14.2-03 69-05.3-01-06. Affected lands - Right of entry - Notice.

The commission shall give at least five days' notice before entry upon property pursuant to North Dakota Century Code section 38-14.2-09.

Law Implemented: NDCC 38-14.2-09 69-05.3-01-07. Consent to entry.

The commission shall take all reasonable actions to obtain written consent from the owner of record of the land or property to be entered in advance of such entry. The consent shall be in the form of a signed statement by the owner of record or the owner's authorized agent which, at a minimum, includes a legal description of the land to be entered, the projected nature of work to be performed on the lands, and any special conditions for entry. The statement shall not include any commitment by the commission to perform reclamation work nor to compensate the owner for entry.

Law Implemented: NDCC 38-14.2-08, 38-14.2-09 69-05.3-01-08. Entry for studies or exploration - Notice.

1.If the owner of the land to be entered under North Dakota Century Code section 38-14.2-08 will not provide consent to entry, the commission shall give notice in writing to the owner of its intent to enter for purposes of study and exploration to determine the existence of adverse effects of past coal mining or noncoal mining practices which may be harmful to the public health, safety, or general welfare.

2.The notice shall be by mail to the owner, if known, and shall include a statement of the reasons why entry is believed necessary.

3.If the owner is not known, or the current mailing address of the owner is not known, or the owner is not readily available, the notice shall be posted in one or more places on the property to be entered where it is readily visible to the public and advertised once in the official newspaper of each county and in other daily newspapers of general circulation in each county wherein the land lies.

4.Notice shall be given at least five days before entry.

5.Entry required to investigate and explore reported emergency conditions will be governed by the provisions of subsection 3 of section 69-05.3-01-09.

Law Implemented: NDCC 38-14.2-08 69-05.3-01-09. Entry for emergency reclamation.

1.The commission, its agents, employees, or contractors shall have the right to enter upon any land where an emergency exists and on any other land to have access to the land where the emergency exists to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining or noncoal mining practices and to do all things necessary or expedient to protect the public health, safety, or general welfare.

2.Prior to entry under this section, the commission shall make a written finding with supporting reasons that:

a.An emergency exists constituting a danger to the public health, safety, or general welfare.

b.Emergency restoration, reclamation, abatement, control, or prevention of adverse effects of past coal mining or noncoal mining is necessary.

c.No other person or agency will act expeditiously to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining or noncoal mining practices.

3.Notice to the owner shall not be required prior to entry for emergency reclamation.

a.The commission shall make reasonable efforts to notify such owner and obtain consent prior to entry consistent with the emergency conditions that exist.

b.Written notice shall be given to the owner as soon after entry as practical.

c.The notice shall be mailed to the owner, if known, and shall include a copy of the findings required by this section.

d.If the owner is not known, or if the current mailing address of the owner is not known, notice shall be posted on the property entered in one or more places where it is readily visible to the public and advertised once in the official newspaper of each county and in other daily newspapers of general circulation in each county wherein the land lies.

e.The notice posted on the property and advertised in the newspapers shall include a statement that an emergency existed and where the findings required by this section may be inspected or obtained.

4.The moneys expended for such work, and the benefits accruing to any such premises so entered, shall be chargeable against such land to the extent allowed in North Dakota Century Code section 38-14.2-14 and shall mitigate or offset any claim in, or any action brought by any owner of any interest in such premises for any alleged damages as a result of the entry, provided however, that this provision is not intended to create new rights of action or to eliminate existing immunities.

5.The reclamation work performed under this section shall be limited to that which is necessary to eliminate the existing emergency conditions.

Law Implemented: NDCC 38-14.2-08, 38-14.2-09 69-05.3-01-10. Land acquisition - Limitations.

The commission shall acquire only such interests in land under North Dakota Century Code section 38-14.2-10 as are necessary for the reclamation work planned or the postreclamation use of the land.

Interests in improvements on the land, mineral rights, or associated water rights may be acquired if:

1.Such interests are necessary to the reclamation work planned or the postreclamation use of the land; and

2.Adequate written assurances cannot be obtained from the owner of the severed interest that future use of the severed interest will not be in conflict with the reclamation to be accomplished. 69-05.3-01-11. Land acquisition - Procedures.

1.An appraisal of the fair market value of all land or interest in land to be acquired shall be obtained by the commission from an independent professional appraiser. The appraisal shall be acknowledged before a notary public or other officer authorized by law to administer oaths and shall state the fair market value of the land as adversely affected by past coal or noncoal mining and shall otherwise conform to generally accepted appraisal practices.

2.When practical, acquisition shall be by purchase from a willing seller. The amount paid for interests acquired shall reflect the fair market value of the interests as adversely affected by past coal or noncoal mining.

3.When necessary, land or interests in land may be acquired by condemnation pursuant to the procedures of North Dakota Century Code chapter 32-15 and other laws governing eminent domain. Condemnation procedures shall not be started until all reasonable efforts have been made to purchase the land or interest in land from a willing seller.

4.The provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 [Pub. L. 91-646; 42 U.S.C. 4601 et seq.] shall be followed for all real property acquisitions and on relocation of persons, businesses, and farms. 69-05.3-01-12. Acceptance of gifts of land.

1.The commission may accept donations of title to land or interest in land that is necessary for reclamation activities.

2.A donation shall not be accepted if the terms and conditions of acceptance are inconsistent with the objectives or requirements of the abandoned mine reclamation program or North Dakota Century Code chapter 38-14.2.

3.Offers to make a gift of such land or interest in land shall be in writing and shall comply with the provisions of North Dakota Century Code section 1-08-04.

4.If the offer is accepted, a deed of conveyance shall be executed, acknowledged, and recorded. The deed shall state that it is made "as a gift under North Dakota Century Code

chapter 38-14.2." Title to donated land shall be in the name of the state of North Dakota. 69-05.3-01-13. Management of acquired lands.

1.Land acquired by the commission under North Dakota Century Code section 38-14.2-10 may be used pending disposition for any lawful purpose that is not inconsistent with the reclamation activities and postreclamation uses for which it was acquired.

2.Any user of land acquired under this chapter shall be charged a use fee. The fee shall be determined on the basis of the fair market value of the benefits granted to the user, charges for comparable uses within the surrounding area, or the costs to the commission for providing the benefit, whichever is appropriate. The commission may waive the fee if it is found in writing that such a waiver is in the public interest.

3.All use fees shall be deposited in the state abandoned mine reclamation fund, after expenditures for maintenance have been deducted.

Law Implemented: NDCC 38-14.2-04, 38-14.2-10 69-05.3-01-14. Disposition of acquired lands.

1.Prior to the disposition of any land acquired under North Dakota Century Code section 38-14.2-10, the commission shall:

a.Publish a notice which describes the proposed disposition of the land in the official newspaper of each county and in other daily newspapers of general circulation in each county wherein the land lies once a week for four successive weeks.

(1)The notice shall provide at least thirty days for public comment and state where copies of plans for disposition of the land may be obtained or reviewed and the address to which comments on the plans should be submitted.

(2)The notice shall also state that a public hearing will be held if requested by any person.

b.Hold a public hearing if requested as a result of the public notice.

(1)The commission may determine that a hearing is appropriate even if a request is not received.

(2)The hearing shall be scheduled at a time and place that affords local citizens and governments the maximum opportunity to participate.

(3)The time and place of the hearing shall be advertised in the official newspaper in each county and in other daily newspapers of general circulation in each county wherein the land lies at least thirty days before the hearing.

(4)All comments received at the hearing shall be recorded.

c.Make a written finding that the proposed disposition is appropriate considering all comments received and consistent with any local, state, or federal laws or regulations which apply.

2.The commission may transfer, with the approval of the director of the office of surface mining reclamation and enforcement, United States department of the interior, the administrative responsibility for land acquired under North Dakota Century Code section 38-14.2-10 to any agency or political subdivision of the state of North Dakota, with or without cost to that agency or political subdivision. The agreement, including amendments, under which a transfer is made shall specify:

a.The purposes for which the land may be used; and

b.That the administrative responsibility for the land will revert to the commission if, at any time in the future, the land is not used for the purposes specified.

3.The commission may, with approval by the director of the office of surface mining reclamation and enforcement, United States department of the interior, transfer title to abandoned and unreclaimed land to the United States to be reclaimed and administered by the office of surface mining reclamation and enforcement.

a.The commission shall have a preference right to purchase such land from the office of surface mining reclamation and enforcement after reclamation is completed.

b.The price to be paid by the commission shall be the fair market value of the land in its reclaimed condition less any portion of the land acquisition price paid by the commission.

4.The commission, with the approval of the director of the office of surface mining reclamation and enforcement, United States department of the interior, may sell land acquired under North Dakota Century Code section 38-14.2-10 by public sale if such land is suitable for industrial, commercial, residential, or recreational development and if such development is consistent with local or state land use plans, if any, for the area in which the land is located.

5.Land may be sold by public sale by the commission pursuant to North Dakota Century Code

section 38-14.2-12 only if it is found that retention by the commission, or disposal under other subsections of this section, is not in the public interest.

6.All moneys received from disposal of land under this section shall be deposited in the state abandoned mine reclamation fund.

Law Implemented: NDCC 38-14.2-12, 38-14.2-13 69-05.3-01-15. Appraisals.

1.An appraisal of the fair market value of land to be reclaimed which may be subject to a lien shall be obtained by the commission from an independent professional appraiser. The appraisal shall be acknowledged before a notary public or other officer authorized by law to administer oaths and shall conform to generally accepted appraisal practices. The appraisal shall be obtained before any reclamation activities are started, unless the work must start without delay to abate an emergency. If work must start because of an emergency, the appraisal shall be completed at the earliest practical time and before related nonemergency work is commenced. The appraisal shall state the fair market value of the land as adversely affected by past coal or noncoal mining.

2.An appraisal of the fair market value of all land reclaimed shall be obtained after all reclamation activities have been completed. The appraisal shall be obtained in accordance with subsection 1 and shall state the market value of the land as reclaimed.

3.The landowner, if known, shall be provided with a statement of the increase in market value, an itemized statement of reclamation expenses, and notice that a lien is being or has been filed in accordance with North Dakota Century Code section 38-14.2-14.

4.Appraisals for land which fall under subdivisions a, b, and c of subsection 1 of North Dakota Century Code section 38-14.2-14 may be obtained from either an independent or staff professional appraiser.

Law Implemented: NDCC 38-14.2-07, 38-14.2-14

Article 69-06 Energy Conversion and Transmission Facility Siting

Chapter 69-06-01 General Provisions

N.D. Admin. Code 69-06-01-01 Definitions

The terms used throughout this article have the same meanings as in North Dakota Century Code

chapter 49-22, and in addition:

1."Act" means the North Dakota Energy Conversion and Transmission Facility Siting Act, North Dakota Century Code chapter 49-22.

2."Avoidance criteria" means criteria that remove areas from consideration for energy conversion facility sites and transmission facility routes unless it is shown that under the circumstances there are no reasonable alternatives.

3."Criteria" means policy statements that guide and govern the preparation of the inventory of exclusion and avoidance areas, and the energy conversion facility site and transmission facility corridor and route suitability evaluation process.

4."Designated corridor" means a corridor for which a certificate has been issued by the commission.

5."Designated route" means a route for which a permit has been issued by the commission.

6."Designated site" means a site for which a certificate has been issued by the commission.

7."Extractive resources" means natural resources that are removed during the construction of a facility, including sand, gravel, soil, rock, and other similar materials.

8."Exclusion criteria" means criteria that remove areas from consideration for energy conversion facility sites and transmission facility routes.

9."Height of the turbine" means the distance from the base of the wind turbine to the turbine blade tip when it is in its highest position.

10."Historical resource" means a district, site, building, structure, or other object which possesses significance in history, archaeology, paleontology, or architecture, or has other cultural value to the state or local community.

11."Party aggrieved" means a person who will be affected in a manner different from the effect on the general public.

12."Policy criteria" means criteria that guide and govern the selection of energy conversion facility sites and transmission facility corridors and routes in order to maximize benefits during the construction and operation of a facility.

13."Refinement" means the action or process of purifying.

14."Selection criteria" means criteria that guide and govern the selection of energy conversion facility sites and transmission facility corridors and routes in order to minimize adverse human and environmental impact after the exclusion and avoidance criteria have been applied.

15."Siting rules" means this article adopted by the commission pursuant to North Dakota Century Code chapters 49-22 and 49-22.1.

16."Wetland" means an aquatic area important to the life stages of certain wildlife species as defined by the United States fish and wildlife service.

History

• History: Amended effective August 1, 1979; April 1, 2013; January 1, 2022.
• Law Implemented: NDCC 49-22-01, 49-22-03, 49-22-05.1, 49-22-07, 49-22-08, 49-22-08.1, 49-22-19

N.D. Admin. Code 69-06-01-02 Procedure for public hearings

1.Rulemaking hearings. A public hearing consistent with the rulemaking provisions of North Dakota Century Code chapter 28-32 must be held prior to the adoption, amendment, or repeal of a rule.

2.Revocation or suspension hearings. A public hearing consistent with the complaint provisions of North Dakota Century Code chapter 28-32 must be held on the revocation or suspension of a certificate or permit. Notice of the public hearing must be given by the commission by publication in the official newspaper of the county where the hearing will be held and in the official newspaper of all counties in which any part of an affected facility is located.

3.Application hearings. One or more public hearings must be held on an application for a certificate or a permit in each county in which any part of the site, corridor, or route is proposed to be located; provided, that the commission may consolidate the county hearings.

The notice of a hearing on an application for a certificate of corridor compatibility for a transmission facility must include a map depicting the proposed corridor and study area. The notice of a hearing on an application for a route permit must include a map depicting the corridor and the location of the proposed route and any proposed alternative routes. Notice of each hearing must be given by the commission at least twenty days prior to the hearing, as follows:

a.By publication in the official newspaper of each county in which any part of the site, corridor, or route is proposed to be located, whether the hearings are consolidated or not, and in such other newspapers that the commission may determine to be appropriate.

b.By mail or electronic mail to the following persons in each county in which any part of the site, corridor, or route is proposed to be located:

(1)The chairman of the board of county commissioners.

(2)The county auditor.

(3)The chief executive officer of each city in the county on an application for a certificate for an energy conversion facility.

(4)The chief executive officer of each city within a corridor on an application for a certificate or permit for a transmission facility.

c.By mail or electronic mail to any state or federal agency listed in section 69-06-01-05.

d.By mail or electronic mail to all parties.

e.By mail or electronic mail to the state senators and representatives of each legislative district in which any part of the site, corridor, or route is proposed to be located.

4.Transfer and waiver hearings. The commission, upon determination that an application for the transfer of a certificate or permit or an application for a waiver of procedures and time schedules is complete, shall publish a notice of opportunity for a public hearing, or upon its own motion shall publish a notice of hearing, once in the official newspaper of each county in which any part of the site, corridor, or route is located or proposed to be located. A public hearing must be held on an application if, either within twenty days following the publication of a notice of opportunity any interested person requests and demonstrates good cause for a public hearing, or the commission determines upon its own motion that there is good cause for a public hearing. Notice of a public hearing must be given by the commission at least twenty days prior to the hearing by publication in the official newspaper of each county in which the site, corridor, or route is located or proposed to be located.

History

• History: Amended effective August 1, 1979; January 1, 1982; April 1, 2013.
• Law Implemented: NDCC 49-22-13

N.D. Admin. Code 69-06-01-03 Advisory committees

1.Public representatives. Persons appointed to an advisory committee to advise and assist the commission in the evaluation of a site or corridor who are to serve as representatives of a city or a county shall be deemed to be the public representatives on that committee.

2.Meetings. Committee meetings must be scheduled at the discretion of the commission. All meetings of an advisory committee must be open to the public, and public notice shall be given of the time and place of each meeting. All committee meetings must be conducted in an informal manner by the commission or its representative, and members of the public and the applicant shall be afforded a reasonable opportunity to participate in the proceedings.

3.Term. All members of an advisory committee serve at the pleasure of the commission.

History

• History: Amended effective April 1, 2013.
• Law Implemented: NDCC 49-22-14

N.D. Admin. Code 69-06-01-04 Application

1.Time. The time in which the commission is required to act in response to an application does not commence until the commission notifies the applicant in writing that the application is complete.

2.Complete application. An application for a certificate or permit will be deemed complete when the commission determines the application contains sufficient information and supporting documentation to enable the commission to process the application.

History

• History: Amended effective April 1, 2013.
• Law Implemented: NDCC 49-22-08, 49-22-08.1

N.D. Admin. Code 69-06-01-05 Designated agencies and officers

The following are the designated state agencies and officers entitled to notice when so referred to in this article:

1.Aeronautics commission.

2.Attorney general.

3.Department of agriculture.

4.State department of health.

5.Department of human services.

6.Department of labor and human rights.

7.Department of career and technical education.

8.Department of commerce.

9.Energy infrastructure and impact office.

10.Game and fish department.

11.Industrial commission.

12.Governor's office.

13.Department of transportation.

14.State historical society of North Dakota.

15.Indian affairs commission.

16.Job service North Dakota.

17.Department of trust lands.

18.Parks and recreation department.

19.Natural resources conservation service.

20.State water commission.

21.United States department of defense.

22.United States fish and wildlife service.

23.United States army corps of engineers.

24.Federal aviation administration.

25.The county commission of the county or counties where the project is located.

26.North Dakota transmission authority.

27.North Dakota pipeline authority.

28.Department of environmental quality.

29.North Dakota geological survey.

30.North Dakota forest service.

31.Federal bureau of land management.

32.Military aviation and installation assurance siting clearinghouse.

33.Twentieth airforce ninety-first missile wing.

34.Minot air force base.

35.Grand Forks air force base.

History

• History: Effective August 1, 1979; amended effective July 1, 2008; April 1, 2013; January 1, 2022.
• Law Implemented: NDCC 49-22-08, 49-22-08.1

N.D. Admin. Code 69-06-01-06 Siting fee refund

After all siting permits and certificates are issued by the commission and after all siting process and project inspection expenses are paid, complete and when the commission has determined that any required tree mitigation is satisfactory, any remaining balance of the application fee will be refunded to the applicant.

History

• History: Effective July 1, 2008; amended effective January 1, 2022.
• Law Implemented: NDCC 49-22-22

Chapter 69-06-02 Utility Reporting Requirements

N.D. Admin. Code 69-06-02-01 Ten-year plan

A ten-year plan must contain the information specified by the commission.

History

• History: Amended effective April 1, 2013.
• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-04

N.D. Admin. Code 69-06-02-02 Filing

1.A ten-year plan must be filed with the commission, and one copy of each plan must be filed with the county auditor of each county in which any part of a site or corridor is proposed to be located.

2.Notice of the filing of each plan must be given by the utility to each agency and officer entitled to notice as designated in section 69-06-01-05.

History

• History: Amended effective August 1, 1979; April 1, 2013; January 1, 2022.
• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-04

Chapter 69-06-02.1 Requests for Jurisdictional Determination

N.D. Admin. Code 69-06-02.1 Requests for Jurisdictional Determination

CHAPTER 69-06-02.1

REQUESTS FOR JURISDICTIONAL DETERMINATION

Section 69-06-02.1-01Filing 69-06-02.1-02Contents 69-06-02.1-01. Filing.

A utility planning to construct an energy conversion or transmission facility may request a jurisdictional determination from the commission. A request for jurisdictional determination must be in writing.

History: Effective April 1, 2011.

General Authority: NDCC 49-22-18

Law Implemented: NDCC 49-22-07.1 69-06-02.1-02. Contents.

A request for a jurisdictional determination must contain:

1.A description of the size of the facility;

2.A description of the type of the facility;

3.A description of the area to be served;

4.A map of the study area for the proposed site or corridor;

5.A description of the ownership and operation responsibility of the facility;

6.A description of the facilities and equipment that will be used and how they will be maintained;

7.A description of the owner's or operator's plans for selling, transmitting, or distributing the output of the plant;

8.A description of how the facility will be physically and electronically interconnected with other energy conversion, transmission, and distribution facilities;

9.A description of the owner's and operator's economic evaluation of the facility; and

10.A description of how the site will be leased or other rights of access will be obtained.

History: Effective April 1, 2011.

General Authority: NDCC 49-22-18

Law Implemented: NDCC 49-22-07.1

Chapter 69-06-03 Letter of Intent [Repealed]

N.D. Admin. Code 69-06-03 Letter of Intent [Repealed]

CHAPTER 69-06-03

LETTER OF INTENT [Repealed effective September 12, 2013]

Chapter 69-06-04 Certificate of Site Compatibility

N.D. Admin. Code 69-06-04-01 Application

1.Form. An application must be reproduced and bound to eight and one-half-inch by eleven-inch size. Accompanying maps must be folded to eight and one-half inches by eleven inches with the title block appearing in the lower right-hand corner.

2.Contents. The application must contain:

a.A description of:

(1)The type of energy conversion facility proposed;

(2)The gross design capacity;

(3)The net design capacity;

(4)The estimated thermal efficiency of the energy conversion process and the assumptions upon which the estimate is based;

(5)The number of acres that the proposed facility will occupy; and (6)The anticipated time schedule for:

(a)Obtaining the certificate of site compatibility;

(b)Completing land acquisition;

(c)Starting construction;

(d)Completing construction;

(e)Testing operations;

(f)Commencing commercial production; and (g)Beginning any expansions or additions.

b.Copies of any evaluative studies or assessments of the environmental impact of the proposed facility submitted to any federal, regional, state, or local agency.

c.An analysis of the need for the proposed facility based on present and projected demand for the product or products to be produced by the proposed facility, including the most recent system studies supporting the analysis of the need.

d.A description of any feasible alternative methods of serving the need.

e.A study area that includes the proposed facility site, of sufficient size to enable the commission to evaluate the factors addressed in North Dakota Century Code section 49-22-09.

f.A discussion of the utility's policies and commitments to limit the environmental impact of its facilities, including copies of board resolutions and management directives.

g.A map identifying the criteria that provides the basis for the specific location of the proposed facility within the study area.

h.A discussion of the criteria evaluated within the study area, including exclusion areas, avoidance areas, selection criteria, policy criteria, design and construction limitations, and economic considerations.

i.A discussion of the mitigative measures that the applicant will take to minimize adverse impacts which result from the location, construction, and operation of the proposed facility.

j.The qualifications of each person involved in the facility site location study.

k.A map of the study area showing the location of the proposed facility and the criteria evaluated.

l.An eight and one-half-inch by eleven-inch black and white map suitable for newspaper publication depicting the site area.

m.A discussion of present and future natural resource development in the area.

n.Map and GIS requirements. The applicant shall provide information that is complete, current, presented clearly and concisely, and supported by appropriate references to technical and other written material available to the commission. The information must provide the location of the proposed facilities, the proposed site, and the criteria evaluated.

Data must be submitted in the ESRI shapefile or geodatabase format. If the applicant cannot submit the data in the ESRI format, an alternate format may be submitted with written approval by commission staff. Data must include appropriate attribute data for the included features. Relevant and complete metadata in compliance with FGDC metadata standards must be provided with all files. Supporting documents such as base maps, figures, cross sections, and reports must be submitted in the portable document file (PDF). If the supporting documents were derived from GID/Cad files, the supporting GIS/Cad files must also be included in the submittal. Aerial photos (raster images) must be georeferenced and submitted in TIFF, GEOTIFF, or MrSID image file formats with the associated word files. Appropriate metadata must be provided with all files, such as the source for the raster images, dates of aerial photography, and the type of the imagery, color bands, i.e., black and white, color, color infrared, and any other pertinent data. All GIS base map data must be referenced to a published geographic or projected coordinate system. The appropriate systems would be North Dakota coordinate system of 1983, north and/or south zones US survey feet (NAD 83), UTM zone 13N or 14N meters (NAD 83), or geographic coordinate system (WGS 84) meters.

The vertical datum must be the North American vertical datum of 1988. Tabular data (i.e., laboratory analytical data, water level evaluation data, monitor well construction data, well and boring X and Y location data, grain size analysis data, hydraulic conductivity data, etc.) must be submitted in either a Microsoft Excel or Microsoft Access database format or both if both are used. Textural data may be submitted in Microsoft Word or PDF format. The application may be submitted to the commission on the following media:

Compact disc (CD-ROM (CD-R)), digital versatile disc (DVD-R or DVD+R), or other media upon commission approval.

3.Filing. The applicant shall file an original and four copies of an application with the commission. The applicant shall provide additional paper copies upon commission request.

4.Notice of filing. The commission shall serve a notice of filing of a complete application on the following:

a.The chairman of the board of county commissioners and the auditor of each county in which any part of the site is proposed to be located.

b.The chief executive officer of each city in a county in which any part of an energy conversion facility is proposed to be located.

c.The chief executive officer of each city within a proposed site for a transmission facility.

d.The agencies and officers entitled to notice as designated in section 69-06-01-05.

e.The state senators and representatives of each legislative district in which any part of the site is proposed to be located.

5.Amendment of application. The commission may allow an applicant to amend its application, consistent with North Dakota Century Code chapter 28-32 and North Dakota Administrative Code article 69-02, at any time during the pendency of an application. A rehearing may be required if the commission determines that a proposed amendment, which is received after the hearing process has been completed, materially changes the authority sought.

6.Reapplication. When a certificate is denied and the commission specifies a modification that would make it acceptable, the applicant may reapply. In a reapplication:

a.The reapplication must be heard as specified in section 69-06-01-02.

b.The utility shall indicate its acceptance or rejection of the suggested modification.

c.If a suggested modification is rejected by the applicant, it shall propose an alternative modification.

d.Include a filing fee and any additional fees as specified in North Dakota Century Code

chapter 49-22.

e.Reapplication must be made within six months of the order denying an application.

History

• History: Amended effective August 1, 1979; April 1, 2013; January 1, 2022.
• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-08, 49-22-08.1

N.D. Admin. Code 69-06-04-02 Designation of sites

1.Requirements of order. An order approving the issuance of a certificate must contain findings that the application, with modifications, if any, meets the site or corridor evaluation process requirements of the Act.

2.Modifications or special conditions.

a.Any modifications or special conditions required by the commission are deemed to be accepted unless the applicant petitions for a rehearing.

b.If the applicant rejects any modifications or special conditions and proposes alternatives which it would accept, such a proposal shall be treated by the commission as an amendment to the application.

c.If the applicant rejects any modifications or special conditions without either requesting a rehearing or proposing alternatives, the commission shall rescind its order and deny the application.

3.Issuance of a certificate. When a site is approved, the commission shall issue a certificate in accordance with the order.

History

• History: Amended effective April 1, 2011; April 1, 2013.
• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-08

Chapter 69-06-05 Transmission Facility Permit

N.D. Admin. Code 69-06-05-01 Application

1.Form. An application must be reproduced and bound to eight and one-half-inch by eleven-inch size. Accompanying maps must be folded to eight and one-half inches by eleven inches with the title block appearing in the lower right-hand corner.

2.Contents. The application must contain:

a.A description of the following:

(1)The type of facility proposed.

(2)The purpose of the facility.

(3)The technology to be deployed.

(4)The type of product to be transmitted.

(5)The source of the product to be transmitted.

(6)The final destination of the product to be transmitted.

(7)The proposed size and design and any alternate size or design that was considered, including:

(a)The width of right of way;

(b)The approximate length of facility;

(c)The estimated span length for electric facilities;

(d)The anticipated type of structure for electric facilities;

(e)The voltage for electric facilities;

(f)The requirement for and general location of any new associated facilities;

(g)The estimated distance between surface structures for pipeline facilities;

(h)The pipe size for pipeline facilities;

(i)The maximum design operating pressure and temperature for pipeline facilities;

(j)The maximum design flow rate for pipeline facilities; and (k)The number and general location of compressor or pumping stations.

b.The anticipated time schedule for accomplishing major events, including:

(1)Obtaining the certification of corridor compatibility;

(2)Obtaining the route permit;

(3)Completing right-of-way acquisition;

(4)Starting construction;

(5)Completing construction;

(6)Testing operations; and (7)Commencing operations.

c.A copy of each evaluative study or assessment of the environmental impact of the proposed facility submitted to the agencies listed in section 69-06-01-05 and each response received.

d.An analysis of the need for the proposed facility based on present and projected demand for the product transmitted, including the most recent system studies supporting the analysis of the need.

e.A description of any feasible alternative methods for serving the need

f.The width of a corridor must be at least ten percent of its length, but not less than one mile [1.61 kilometers] or greater than six miles [9.66 kilometers] unless another appropriate width is determined by the commission.

g.A study area that includes a proposed corridor of sufficient width to enable the commission to evaluate the factors addressed in North Dakota Century Code section 49-22-09.

h.A discussion of the factors in North Dakota Century Code section 49-22-09 to aid the commission's evaluation of the proposed route.

i.A discussion of the applicant's policies and commitments to limit the environmental impact of its facilities, including copies of board resolutions and management directives.

j.Identification and map of the criteria that led to the proposed route location within the designated corridor, including exclusion areas, avoidance areas, selection criteria, policy criteria, design construction limitations, and economic considerations.

k.A discussion of the relative value of each criteria and how the applicant selected the proposed corridor location, giving consideration to all criteria and how the location, construction, and operation of the facility will affect each criteria.

l.A discussion of the general mitigative measures that the applicant will take to minimize adverse impacts that result from a route location in the proposed corridor and the construction and operation of the facility.

m.The qualifications of each person involved in the corridor location study.

n.A map identifying the criteria that led to the proposed route location within the designated corridor and the location of any new associated facilities. Several different criteria may be shown on each map depending on the map scale and the density and nature of the criteria.

o.An eight and one-half-inch by eleven-inch black and white map suitable for newspaper publication depicting the site area.

p.A discussion of present and future natural resource development in the area.

q.Map and GIS requirements. The applicant shall provide information that is complete, current, presented clearly and concisely, and supported by appropriate references to technical and other written material available to the commission. The information must provide the location of the proposed facilities, the proposed corridor and route, and the criteria evaluated. Data must be submitted in the ESRI shapefile or geodatabase format.

If the applicant cannot submit the data in the ESRI format, an alternate format may be submitted with written approval by commission staff. Data must include appropriate attribute data for the included features. Relevant and complete metadata in compliance with FGDC metadata standards must be provided with all files. Supporting documents such as base maps, figures, cross sections, and reports must be submitted in the portable document file (PDF). If the supporting documents were derived from GIS/Cad files the supporting GIS/Cad files must also be included in the submittal. Aerial photos (raster images) must be georeferenced and submitted in TIFF, GEOTIFF, or MrSID image file formats with the associated word files. Appropriate metadata must be provided with all files, such as the source for the raster images, dates of aerial photography, and the type of imagery, color bands, i.e., black and white, color, color infrared, and any other pertinent data. All GIS base map data must be referenced to a published geographic or projected coordinate system. The appropriate systems would be North Dakota coordinate system of 1983, north and/or south zones US survey feet (NAD 83). UTM zone 13N or 14N meters (NAD 83), or geographic coordinate system (WGS 84) meters. The vertical datum must be the North American vertical datum of 1988. Tabular data (i.e., laboratory analytical data, water level evaluation data, monitor well construction data, well and boring X and Y location data, grain size analysis data, hydraulic conductivity data, etc.) must be submitted in either a Microsoft Excel or Microsoft Access database format or both if both are used. Textural data may be submitted in Microsoft Word or PDF format.

The application may be submitted to the commission on the following media:

Compact disc (CD-ROM (CD-R)), digital versatile disc (DVD-R or DVD+R), or other media upon commission approval.

3.Filing. The applicant shall file an original and four copies of an application with the commission. The applicant shall provide additional paper copies upon commission request.

4.Service. The applicant shall serve one copy of a complete application on the county auditor in each county in which any part of the designated corridor is located.

5.Notice of filing. The commission shall serve a notice of the filing of a complete application on the following:

a.The chief executive officer of each city within the designated corridor.

b.The agencies and officers entitled to notice as designated in section 69-06-01-05.

c.The chairman of the board of county commissioners of each county in which any part of the designated corridor is located.

d.The state senators and representatives of each legislative district in which any part of the designated corridor is located.

History

• History: Amended effective August 1, 1979; April 1, 2013; January 1, 2022.
• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-08.1

N.D. Admin. Code 69-06-05-02 Designation of corridor and route

1.Issuance of a permit. An order approving the issuance of a permit must:

a.Describe the authority granted.

b.Contain any special conditions that the commission may require.

c.Specify any required modifications in the type, design, routing, right-of-way preparation, or construction of the facility.

d.Contain findings that the application, with modifications, if any, meets the corridor evaluation process requirements of the Act, and any special conditions the commission may require.

2.Issuance of a certificate. When a corridor is approved, the commission shall issue a certificate in accordance with the order.

3.Deviations. The commission may permit a deviation from the designated route before or during construction if the deviation does not violate any of the exclusion and avoidance area criteria of this article. After construction is complete a deviation is governed by North Dakota Century Code section 49-22-03.

4.Variance from permit conditions. The commission may allow a variance from any special condition upon a request demonstrating the existence of good cause.

History

• History: Amended effective August 1, 1979; April 1, 2013; January 1, 2022.
• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-08.1

Chapter 69-06-06 Waiver of Procedures and Time Schedules

N.D. Admin. Code 69-06-06-01 Application

An application must be in the form prescribed by the commission.

1.Filing. The applicant shall file an original and ten copies of an application with the commission.

2.Contents. The application must contain:

a.A description of the type of facility addressed in the application, including the purpose and the technology to be employed.

b.A description of the products to be produced or transmitted by the proposed facility.

c.The capacity and design of the proposed facility.

d.The location of the proposed facility and a map showing the location of the proposed facility.

e.A description of the general area to be served by the facility.

f.The anticipated time schedule for major events.

g.Any plans for future expansion of the proposed facility.

h.The need for the proposed facility based on the present and projected demand for the product or products to be produced by the proposed facility, including the most recent system studies supporting the analysis of the need.

i.Any reasonable alternative methods of serving the need.

j.Justification for any deviations from the applicant's most recent ten-year plan that the proposed facility may present.

k.The estimated total cost of construction of the facility.

l.Any specific provisions of law that the applicant requests the commission waive or modify, with a separate justification for each provision.

m.The factual basis demonstrating that the proposed facility is of such length, design, location, or purpose that it will produce minimal adverse effects.

n.The nature of the emergency justifying immediate authority, if the application is based on an emergency situation.

History

• History: Amended effective April 1, 2013.
• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-07.2

N.D. Admin. Code 69-06-06-02 Order

An order approving or denying all or part of a request must contain findings supporting the decision and must specifically describe the procedures and time schedules that are waived.

History

• History: Amended effective April 1, 2013.
• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-07.2

Chapter 69-06-07 Emergency Certificate or Permit [Repealed]

N.D. Admin. Code 69-06-07 Emergency Certificate or Permit [Repealed]

CHAPTER 69-06-07

EMERGENCY CERTIFICATE OR PERMIT [Repealed effective August 1, 1979]

Chapter 69-06-08 Criteria

N.D. Admin. Code 69-06-08-01 Energy conversion facility siting criteria

The following criteria must guide and govern the preparation of the inventory of exclusion and avoidance areas, and the site suitability evaluation process.

1.Exclusion areas. The following geographical areas must be excluded in the consideration of a site for an energy conversion facility.

a.Designated or registered national: parks; memorial parks; historic sites and landmarks; natural landmarks; historic districts; monuments; wilderness areas; wildlife areas; wild, scenic, or recreational rivers; wildlife refuges; and grasslands.

b.Designated or registered state: parks; forests; forest management lands; historic sites; monuments; historical markers; archaeological sites; grasslands; wild, scenic, or recreational rivers; game refuges; game management areas; management areas; and nature preserves.

c.County parks and recreational areas; municipal parks; parks owned or administered by other governmental subdivisions; hardwood draws; and enrolled woodlands.

d.Areas critical to the life stages of threatened or endangered animal or plant species.

e.Areas where animal or plant species that are unique or rare to this state would be irreversibly damaged.

f.Areas within one thousand two hundred feet of the geographic center of an intercontinental ballistic missile (ICBM) launch or launch control facility.

g.Areas within thirty feet [9.14 meters] on either side of a direct line between an intercontinental ballistic missile (ICBM) launch facility and a missile alert or launch control facilities to avoid microwave interference. This restriction only applies to aboveground structures, not to surface features, such as roads, or belowground infrastructure.

2.Additional exclusion areas for wind energy conversion facilities. The following geographical areas must be excluded in the consideration of a site for a wind energy conversion facility:

a.Areas within:

(1)One and one-tenth times the height of the turbine from the nearest edge of an interstate or state roadway right of way;

(2)One and one-tenth times the height of the turbine plus seventy-five feet from the centerline of any county or maintained township roadway;

(3)One and one-tenth times the height of the turbine from the nearest edge of railroad right of way;

(4)One and one-tenth times the height of the turbine from the nearest edge of a one hundred fifteen kilovolt or higher transmission line right of way; and (5)One and one-tenth times the height of the turbine from the property line of a nonparticipating landowner and three times the height of the turbine from an inhabited rural residence of a nonparticipating landowner, unless a variance is granted. A variance may be granted if an authorized representative or agent of the permittee, the nonparticipating landowner, and affected parties with associated wind rights file a written agreement expressing all parties' support for a variance to reduce the setback requirement in this subsection. A nonparticipating landowner is a landowner that has not signed a wind option or an easement agreement with the permittee of the wind energy conversion facility as defined in North Dakota Century Code chapter 17-04.

3.Avoidance areas. The following geographical areas may not be approved as a site for an energy conversion facility unless the applicant shows that under the circumstances there is no reasonable alternative. In determining whether an avoidance area should be designated for a facility the commission may consider, among other things, the proposed management of adverse impacts; the orderly siting of facilities; system reliability and integrity; the efficient use of resources; and alternative sites. Economic considerations alone will not justify approval of these areas. A buffer zone of a reasonable width to protect the integrity of the area must be included. Natural screening may be considered in determining the width of the buffer zone.

a.Historical resources which are not designated as exclusion areas.

b.Areas within the city limits of a city or the boundaries of a military installation.

c.Areas within known floodplains as defined by the geographical boundaries of the hundred-year flood.

d.Areas that are geologically unstable.

e.Woodlands and wetlands.

f.Areas of recreational significance which are not designated as exclusion areas.

4.Additional avoidance areas for wind energy conversion facilities. A wind energy conversion facility site must not include a geographic area where, due to operation of the facility, the sound levels within one hundred feet of an inhabited residence or a community building will exceed forty-five dBA. The sound level avoidance area criteria may be waived in writing by the owner of the occupied residence or the community building.

5.Selection criteria. A site may be approved in an area only when it is demonstrated to the commission by the applicant that any significant adverse effects resulting from the location, construction, and operation of the facility in that area as they relate to the following, will be at an acceptable minimum, or that those effects will be managed and maintained at an acceptable minimum. The effects to be considered include:

a.The impact upon agriculture:

(1)Agricultural production.

(2)Family farms and ranches.

(3)Land which the owner demonstrates has soil, topography, drainage, and an available water supply that cause the land to be economically suitable for irrigation.

(4)Surface drainage patterns and ground water flow patterns.

(5)The agricultural quality of the cropland.

b.The impact upon the availability and adequacy of:

(1)Law enforcement.

(2)School systems and education programs.

(3)Governmental services and facilities.

(4)General and mental health care facilities.

(5)Recreational programs and facilities.

(6)Transportation facilities and networks.

(7)Retail service facilities.

(8)Utility services.

c.The impact upon:

(1)Local institutions.

(2)Noise-sensitive land uses.

(3)Light-sensitive land uses.

(4)Rural residences and businesses.

(5)Aquifers.

(6)Human health and safety.

(7)Animal health and safety.

(8)Plant life.

(9)Temporary and permanent housing.

(10)Temporary and permanent skilled and unskilled labor.

d.The cumulative effects of the location of the facility in relation to existing and planned facilities and other industrial development.

e.The impact upon military installations, assets, and operations.

6.Policy criteria. The commission may give preference to an applicant that will maximize benefits that result from the adoption of the following policies and practices, and in a proper case may require the adoption of such policies and practices. The commission may also give preference to an applicant that will maximize interstate benefits. The benefits to be considered include:

a.Recycling of the conversion byproducts and effluents.

b.Energy conservation through location, process, and design.

c.Training and utilization of available labor in this state for the general and specialized skills required.

d.Use of a primary energy source or raw material located within the state.

e.Not relocating residents.

f.The dedication of an area adjacent to the facility to land uses such as recreation, agriculture, or wildlife management.

g.Economies of construction and operation.

h.Secondary uses of appropriate associated facilities for recreation and the enhancement of wildlife.

i.Use of citizen coordinating committees.

j.A commitment of a portion of the energy produced for use in this state.

k.Labor relations.

l.The coordination of facilities.

m.Monitoring of impacts.

n.A commitment to install lighting mitigation technology for wind energy conversion facilities subject to commercial availability and federal aviation administration approval.

July 1, 2019; July 1, 2020; January 1, 2022.

History

• History: Amended effective August 1, 1979; July 1, 2006; April 1, 2013; July 1, 2017; July 1, 2018;
• General Authority: NDCC 28-32-02, 49-22-18
• Law Implemented: NDCC 49-22-05.1, 49-22.1-03

N.D. Admin. Code 69-06-08-02 Transmission facility corridor and route criteria

The following criteria must guide and govern the preparation of the inventory of exclusion and avoidance areas, and the corridor and route suitability evaluation process. Exclusion and avoidance areas may be located within a corridor, but at no given point may such an area or areas encompass more than fifty percent of the corridor width unless there is no reasonable alternative.

1.Exclusion areas. The following geographical areas must be excluded in the consideration of a route for a transmission facility. A buffer zone of a reasonable width to protect the integrity of the area must be included. Natural screening may be considered in determining the width of the buffer zone.

a.Designated or registered national: parks; memorial parks; historic sites and landmarks; natural landmarks; monuments; and wilderness areas.

b.Designated or registered state: parks; historic sites; monuments; historical markers; archaeological sites; and nature preserves.

c.County parks and recreational areas; municipal parks; and parks owned or administered by other governmental subdivisions.

d.Areas critical to the life stages of threatened or endangered animal or plant species.

e.Areas where animal or plant species that are unique or rare to this state would be irreversibly damaged.

f.Areas within one thousand two hundred feet of the geographic center of an intercontinental ballistic missile (ICBM) launch or launch control facility.

g.Areas within thirty feet on either side of a direct line between an intercontinental ballistic missile (ICBM) launch facility and a missile alert or launch control facilities to avoid microwave interference. This restriction only applies to aboveground structures, not to surface features, such as roads, or belowground infrastructure.

2.Avoidance areas. The following geographical areas may not be considered in the routing of a transmission facility unless the applicant shows that under the circumstances there is no reasonable alternative. In determining whether an avoidance area should be designated for a facility, the commission may consider, among other things, the proposed management of adverse impacts; the orderly siting of facilities; system reliability and integrity; the efficient use of resources; and alternative routes. Economic considerations alone will not justify approval of these areas. A buffer zone of a reasonable width to protect the integrity of the area will be included unless a distance is specified in the criteria. Natural screening may be considered in determining the width of the buffer zone.

a.Designated or registered national: historic districts; wildlife areas; wild, scenic, or recreational rivers; wildlife refuges; and grasslands.

b.Designated or registered state: wild, scenic, or recreational rivers; game refuges; game management areas; management areas; forests; forest management lands; and grasslands.

c.Historical resources which are not specifically designated as exclusion or avoidance areas.

d.Areas which are geologically unstable.

e.Within five hundred feet [152.4 meters] of a residence, school, or place of business. This criterion shall not apply to a water pipeline transmission facility. This avoidance area may be waived by the owner.

f.Reservoirs and municipal water supplies.

g.Water sources for organized rural water districts.

h.Irrigated land. This criterion shall not apply to an underground transmission facility.

i.Areas of recreational significance which are not designated as exclusion areas.

3.Selection criteria. A corridor or route shall be designated only when it is demonstrated to the commission by the applicant that any significant adverse effects which will result from the location, construction, and maintenance of the facility as they relate to the following, will be at an acceptable minimum, or that those effects will be managed and maintained at an acceptable minimum. The effects to be considered include:

a.The impact upon agriculture:

(1)Agricultural production.

(2)Family farms and ranches.

(3)Land which the owner can demonstrate has soil, topography, drainage, and an available water supply that cause the land to be economically suitable for irrigation.

(4)Surface drainage patterns and ground water flow patterns.

b.The impact upon:

(1)Sound-sensitive land uses.

(2)The visual effect on the adjacent area.

(3)Extractive and storage resources.

(4)Wetlands, woodlands, and wooded areas.

(5)Radio and television reception, and other communication or electronic control facilities.

(6)Human health and safety.

(7)Animal health and safety.

(8)Plant life.

4.Policy criteria. The commission may give preference to an applicant that will maximize benefits that result from the adoption of the following policies and practices, and in a proper case may require the adoption of such policies and practices. The commission may also give preference to an applicant that will maximize interstate benefits. The benefits to be considered include:

a.Location and design.

b.Training and utilization of available labor in this state for the general and specialized skills required.

c.Economies of construction and operation.

d.Use of citizen coordinating committees.

e.A commitment of a portion of the transmitted product for use in this state.

f.Labor relations.

g.The coordination of facilities.

h.Monitoring of impacts.

i.Utilization of existing and proposed rights of way and corridors.

j.Other existing or proposed transmission facilities.

History

• History: Amended effective August 1, 1979; January 1, 1982; February 1, 1995; July 1, 2006; April 1, 2013; July 1, 2020; January 1, 2022.
• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-05.1

Chapter 69-06-09 Continuing Suitability of Certificate or Permit

N.D. Admin. Code 69-06-09-01 Certification

A certification of continuing suitability shall contain the following:

1.The proposed date for the commencement of construction or improvement.

2.The information relied upon in making the certification.

History

• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-17

N.D. Admin. Code 69-06-09-02 Determination and order

1.If the commission determines that the site or route continues to meet the evaluation requirements of the Act and this article, it shall issue an order authorizing the beginning of construction or improvement, which order shall specify the time within which the utility shall begin construction or improvement.

2.If the commission determines that the site or route does not continue to meet the evaluation requirements of the Act and this article it shall do one of the following:

a.Cancel the certificate or permit.

b.Make such modifications to the certificate or permit as it may require.

History

• General Authority: NDCC 49-22-18
• Law Implemented: NDCC 49-22-17

Chapter 69-06-10 Small Wind Energy Conversion Facilities

N.D. Admin. Code 69-06-10-01 Application

Except as provided in section 69-06-10-02, an application for a certificate of site compatibility for a wind energy conversion facility designed for or capable of generating no more than twenty megawatts of electricity may file an application under this chapter.

N.D. Admin. Code 69-06-10-02 Exemption

This chapter does not apply to a wind energy conversion facility with outer boundaries that are adjacent to or within one mile of the outer boundaries of another wind energy conversion facility.

N.D. Admin. Code 69-06-10-03 Contents

The application must be accompanied by:

1.An application fee as required under North Dakota Century Code section 49-22-22.

2.All supporting documentation regarding exclusion and avoidance areas.

3.Written certification that the applicant will follow all siting laws and rules.

4.Written certification that the proposed facility will not affect any known exclusion areas. If the proposed energy conversion facility will not affect any known avoidance areas, written certification that the proposed facility will not affect any known avoidance areas.

5.If a proposed energy conversion facility will affect a known avoidance area, written notice that the proposed facility will affect a known avoidance area and information on the specific avoidance area expected to be impacted and the reasons why the impact cannot be avoided.

6.Written certification that the applicant will comply with the applicable tree and shrub mitigation specifications and any other representations and covenants contained in the applicable certification relating to order provisions.

N.D. Admin. Code 69-06-10-04 Hearing

Upon a determination that an application is complete, the commission may issue a notice of filing and notice of opportunity to comment or request for hearing. The notice must be served in the manner provided in section 69-06-01-02 and published once in the official county newspaper of the county in which the facility is to be located. The notice must be served and published at least twenty days before the date by which interested persons may comment or request a hearing on the application. The commission may order a hearing on the application by its own motion.

Chapter 69-06-11 Wind Energy Conversion Facility Lighting Systems

N.D. Admin. Code 69-06-11-01 Definitions

In this chapter:

1."Aircraft detection lighting system" means a sensor-based system designed to detect aircraft as they approach a wind energy conversion facility; this system automatically activates obstruction lights until they are no longer needed.

2."Commission" means the public service commission.

3."Light intensity dimming solution technology" means obstruction lighting that provides a means of tailoring the intensity level of lights according to surrounding visibility.

4."Light-mitigating technology system" means aircraft detection lighting system, lighting intensity dimming solution technology, or a comparable solution capable of reducing the impact of nighttime lighting while maintaining night conspicuity sufficient to assist aircraft in identifying and avoiding collision with the facilities.

5."Owner" means a person who holds a certificate of site compatibility pursuant to North Dakota Century Code chapter 49-22.

6."Wind energy conversion facility" means any plant, addition, or combination of plant and addition, designed for or capable of generation by wind energy conversion exceeding one-half megawatt of electricity.

N.D. Admin. Code 69-06-11-02 Implementation

1.A wind energy conversion facility for which a certificate of site compatibility was issued after June 5, 2016, must be equipped with a functioning light-mitigating technology in compliance with this chapter by December 31, 2019.

2.A wind energy conversion facility for which a certificate of site compatibility was issued before June 5, 2016, must be equipped with a functioning light-mitigating technology in compliance with this chapter by December 31, 2021. The commission may grant an extension of time based on technical or economic feasibility considerations.

3.The commission may grant a waiver of this chapter for a wind energy conversion facility designed for or capable of generating no more than five megawatts of electricity upon a motion demonstrating good cause for the waiver.

4.To allow proper conspicuity of a turbine at night during construction, a turbine may be lighted with temporary lighting until the permanent lighting configuration, including the light-mitigating technology, is implemented.

5.Owner shall provide written notice to the commission upon implementation of light-mitigating technology in compliance with this chapter.

6.Owner is solely responsible for any costs associated with the implementation, operation, and maintenance of each light-mitigating technology system.

7.An extension request must be in writing and contain:

a.The purpose of the extension;

b.A description of the light-mitigating technologies submitted to the federal aviation administration;

c.The technical or economic inability to implement light-mitigating technology systems;

d.The length of extension requested; and

e.Any other information requested by the commission.

N.D. Admin. Code 69-06-11-03 Service, maintenance, safety, and lighting system standards

Each light-mitigating technology system must be installed, operated, and maintained in accordance with United States department of transportation federal aviation administration regulations [14 CFR 1.1.

et. seq] in effect as of July 1, 2018.

Article 69-09 Public Utility Division

Chapter 69-09-01 Standards of Service - Gas

N.D. Admin. Code 69-09-01-01 Definitions

As used in this article:

1."Commission" means the public service commission of the state of North Dakota.

2."Customer" means any person, firm, corporation, municipality, or other political subdivision of North Dakota supplied by any such utility.

3."Utility" means public utility.

N.D. Admin. Code 69-09-01-02 Heating value

1.Artificial gas. Each utility furnishing manufactured gas shall supply gas which shall have an average heating value of five hundred twenty-five British thermal units per cubic foot [28.32 liters]; and at no time shall the heating value of the gas at such point be less than five hundred or more than five hundred fifty British thermal units per cubic foot [28.32 liters]; provided, that before the gas utility may lower its present standard, the commission may make an investigation of the operating condition of the plant to determine whether the rates may not be reduced at the same time. The present standards of the gas utility shall not be changed until specifically relieved by the commission. Tests shall be made at least twice a day, Sundays and holidays excepted.

On or before the tenth day of each month, the above daily heating value averages for the preceding calendar month shall be reported to the commission, together with full explanations of any abnormal operations.

2.Natural gas. Each utility furnishing natural gas shall determine the heating value of the gas at regular intervals of not less than thirty days and shall file with the commission, monthly, a report of these tests.

N.D. Admin. Code 69-09-01-03 Calorimeter equipment

Each utility shall equip itself with a complete standard calorimeter outfit. This equipment shall be used to test the heating value of gas supplied. The accuracy of all calorimeters, as well as the method of making heating value tests, shall be subject to the approval of the commission.

The heating value tests should be distributed with relation to the time of day in such a manner that the number of tests made will be proportional to the average rate of "sendout" at that time. At least two tests shall be made each day.

N.D. Admin. Code 69-09-01-04 Purity of gas

1.Total sulfur. Manufactured gas distributed in this state shall in no case contain more than thirty grains [1.94 grams] of total sulfur per one hundred cubic feet [2.83 cubic meters] unless specific relief is granted by the commission.

2.Hydrogen sulfide. In no case shall the manufactured or diluted natural gas sold for lighting or heating contain an amount of hydrogen sulfide (sulfurated hydrogen) detectable by the following test:

The gas shall be considered to contain no more than a trace of hydrogen sulfide if a strip of white filter paper freshly moistened with a solution containing five percent by weight of lead acetate is not distinctly darker than a second paper freshly moistened with the same solution after the first paper has been exposed to the gas one minute in an apparatus through which the gas is flowing at the rate of approximately five cubic feet [141.58 liters] per hour, the gas not impinging directly from a jet upon the test paper.

3.Each utility furnishing manufactured gas service shall daily test the gas supplied by it for the presence of hydrogen sulfide and shall mark and preserve the test papers for at least ten days.

4.Each utility furnishing undiluted natural gas shall file with the commission a statement showing an analysis of the gas being furnished.

N.D. Admin. Code 69-09-01-05 Pressure of gas

1.Maximum and minimum limits. The pressure of gas supplied by any utility, as measured at the outlet of the service pipe to any customer, or in the case of high pressure systems at the outlet of the house governor, should be maintained as uniform as practicable. For artificial gas service the pressure should never be less than three inches or more than twelve inches of water pressure. For natural gas service the pressure should never be less than three ounces or more than twelve ounces. Customers desiring service at greater than the maximum allowable should request in writing that a higher service be maintained and shall also pay any additional expense incurred, over and above the regular cost of service at the standard pressure, in providing and maintaining a special service.

2.Artificial gas. At any one outlet between the hours of six a.m. and seven p.m. of any one day, the variation of pressure shall not be greater than the following:

Minimum Pressure Greatest Variation Maintained Permissible 3 inches 2 inches 3-4 inches 2 1/2 inches 4-5 inches 3 inches 5-6 inches 3 1/2 inches 6-8 inches 4 inches

3.Natural gas. At any one outlet the variation of pressure shall not be greater than the following:

Minimum Maximum Established Pressure Pressure Pressure Allowable Allowable 4 ounces 3 ounces 6 ounces 6 ounces 3 ounces 9 ounces 8 ounces 4 ounces 12 ounces

4.Variations. A utility shall not be deemed to have violated this section if it can be shown that the variations occurring in gas pressure were caused by unforeseen demand, temporary conditions beyond the control of the utility, individual customer-owned service lines, or pipelines of such size as to render the maintenance of standard pressure variations impracticable.

N.D. Admin. Code 69-09-01-06 Pressure recording equipment and records

1.Each utility shall be equipped with a sufficient number of portable recording pressure gauges and shall make frequent measurements of the gas pressure variation throughout each separate distribution system. A record shall be kept of the pressure at some point on each system at all times.

2.All pressure charts which have been made shall be filed by the utility for at least two years and shall be sufficiently complete and so arranged that compliance with the individual requirements of section 69-09-01-05 can be determined easily.

N.D. Admin. Code 69-09-01-07 Definition of a cubic foot of gas

For the purpose of testing the gas under this chapter, a cubic foot of gas shall be taken to be that amount of gas which occupies the volume of one cubic foot [28.3168 liters] when saturated with water vapor at sixty degrees Fahrenheit [15.56 degrees Celsius] and under a pressure equal to that of thirty inches [7.62 centimeters] of mercury at a temperature of thirty-two degrees Fahrenheit [0 degrees Celsius]. For the purpose of measurement of gas to a customer, a cubic foot of gas shall be taken to be that amount of gas which occupies a volume of one cubic foot [28.32 liters] under the conditions existing in such customer's meter as and where installed; provided, however, that when gas is metered at a pressure more than twelve inches [30.48 centimeters] of water column in excess of the prevailing barometric pressure (by agreement with the customer or with the written approval of the commission), the volume of gas metered shall be computed on the basis of the mean pressure in the utility's low-pressure system, or other basis ordered by the commission.

N.D. Admin. Code 69-09-01-08 Testing facilities

1.Each utility shall, unless specifically excused by the commission, provide such laboratory meter testing equipment and other equipment and facilities as may be necessary to make the tests required of it by this chapter or other orders of the commission. The apparatus and equipment so provided shall be subject to the approval of the commission, and it shall be available at all times for the inspection or use of any member or authorized representative of the commission.

2.Each utility shall make such tests as are prescribed under this chapter with such frequency and in such manner and at such places as are herein provided or as may be approved or ordered by the commission. Unless otherwise directed by the commission, the methods and apparatus recommended by the national bureau of standards in the latest edition of its Circular C48, "Standard Method of Gas Testing", may be used.

N.D. Admin. Code 69-09-01-09 Meter prover

Each utility furnishing metered gas service shall maintain the equipment and facilities necessary for accurately testing all types and sizes of meters employed for the measurement of gas to its customers unless arrangements approved by the commission shall have been made to have such testing done elsewhere. In general, each utility will be required, as a minimum, to provide and maintain a meter prover of approved type and of a capacity of not less than five cubic feet [141.58 liters] for the testing of the most numerous class of customers' meters. Each meter prover shall be supplied with all accessories needed for accurate meter testing and shall be located in a room suitable for the work to be done, protected from drafts and excessive changes of temperature. The utility shall maintain this equipment in good condition and correct adjustment so that it shall be capable of determining accuracy of any service meter to within one-half of one percent.

N.D. Admin. Code 69-09-01-10 Location of meters

No meter shall be installed in any location where it may be unnecessarily exposed to heat, cold, dampness, or other cause of damage or in any unduly dirty or inaccessible location. Where these conditions cannot be avoided, a location must be chosen that will least affect the meter's accuracy and condition.

N.D. Admin. Code 69-09-01-11 Service meters required

1.All gas sold by a utility shall be charged for by meter measurements, except that which may be otherwise authorized by the commission.

2.Unless otherwise authorized by the commission, each utility shall provide and install at its own expense and shall continue to own, maintain, and operate all equipment necessary for the

regulation and measurement of gas to its customers. Where additional meters are furnished by the utility to be used as submeters, or for the convenience of the customer, a charge for such meters may be made in accordance with a schedule approved by the commission.

N.D. Admin. Code 69-09-01-12 Prepayment meters

No utility shall use prepayment meters except in special cases or for clearly defined special classes of service authorized by the commission.

N.D. Admin. Code 69-09-01-13 Gas meter accuracy requirement

1.Installation test. Every gas service meter, whether new or repaired, or that has been removed from the service for any cause, shall be in good order and shall be correct to within two percent before being installed for the use of any customer. However, a utility which has less than one thousand customers and which has no facilities for opening meter cases and adjusting the mechanism may put a meter back into service, unless it is found to be in error by more than two percent or appears otherwise to be in poor condition.

2.Method of testing. For the purpose of determining compliance with this section, the registration of a displacement meter shall be determined by one test at a rate of flow of approximately one-fifth of the rated capacity of that meter and one test at a rate of flow of approximately the rated capacity of the meter. The tests at the two rates shall agree within two percent. The accuracy of the meter at the lower rate of flow shall be considered as its accuracy in determining compliance with subsection 1 and for the purpose of computing refunds. All tests to determine the accuracy of any gas service meter shall be made with a meter prover, unless, because of the unusual capacity or construction of the meter, such method of test shall be considered impracticable and another method of test shall have been approved by the commission.

N.D. Admin. Code 69-09-01-14 Periodic tests

All service meters shall be tested and adjusted at least once in every eight years, or in accordance with a plan approved by the commission.

N.D. Admin. Code 69-09-01-15 Requests and referee tests

1.A gas service utility shall test the accuracy of any meter upon request of the customer, shall provide the customer with a report of the test results, and shall keep the complete original test record and a copy of the report on file in the utility's office.

2.A customer may request in writing to the commission that the utility's test be supervised by a commission representative.

3.The customer shall not be charged for the test provided the customer requests no more than one test each twelve-month period, otherwise the utility may charge a tariffed rate. The charge must be waived if the meter error is more than plus or minus two percent.

History

• History: Amended effective July 1, 1997.

N.D. Admin. Code 69-09-01-16 Meter test records

1.Each utility shall keep a record of meter tests for at least two years. The record shall show the identification of the meter, reading of the meter before the test, the results of the test, and accuracy after adjustment, if adjustment is made.

2.Each utility shall annually file with the commission a summary report of meter tests made during the year. This report shall show the number of meters tested, the number of meters found to be accurate within the allowable limits, the number of meters found to be fast, and the number of meters found to be slow.

N.D. Admin. Code 69-09-01-17 Deposits and guarantees

1.Each gas utility may require each applicant for service to make a deposit not to exceed one and one-half times the estimated amount of one month's average bill. A receipt showing the amount of the deposit, the date the deposit was made, and the depositor's name shall be issued to each depositor. Each utility shall keep a deposit record showing the same information as shown on the depositor's receipt and shall provide a method of repayment in case the depositor's receipt has become lost or destroyed.

2.The utility shall pay interest on such deposit at the rate paid by the Bank of North Dakota on a six-month certificate of deposit. Such rate will be determined as of the first business day of each year, on a six-month certificate of deposit with the smallest deposit required. The interest may be paid to the depositor, or may be deducted from the depositor's indebtedness to the utility for gas service. The payment or deduction for interest must be made during each calendar year or whenever a deposit is refunded or service discontinued.

3.The utility may accept in lieu of a cash deposit a contract signed by a guarantor, satisfactory to the utility, whereby the payment of a specified sum not to exceed the required cash deposit is guaranteed. The term of such contract shall be indeterminate, but it shall automatically terminate when the customer gives notice of service discontinuance to the utility or a change in location covered by the guarantee agreement or thirty days after written request for termination is made to the utility by the guarantor. However, no agreement shall be terminated without the customer having made satisfactory settlement for any balance which the customer owes the utility. Upon termination of a guarantee contract a new contract or a cash deposit may be required by the utility.

History

• History: Amended effective April 1, 1985.

N.D. Admin. Code 69-09-01-18 Discontinuance of service

Superseded by section 69-09-01-18.1. 69-09-01-18.1. Discontinuance of gas service.

1.A utility may disconnect service if the customer is delinquent in payment for services rendered.

However, no utility shall discontinue service to a customer for failure to pay for such service until the utility shall first have given the customer notice of its intention to discontinue such service on account of delinquency. The notice shall:

a.Be sent by first-class mail addressed to the customer at the place where service is rendered, except that in the case of residential customers sixty-five years of age or older, or for handicapped customers, personal notice by delivery is required. A copy of each notice must also be mailed to the nearest social service office and to any other appropriate financial assistance agency, providing that prior approval has been given by the customer pursuant to subsection 2.

b.Show the amount of the delinquency.

c.Include the telephone number of the public service commission.

d.Advise the customer of the customer's rights and remedies, including the right of the customer to stay termination for up to thirty days if the customer advises the utility within the ten-day notice period that dangerous health conditions exist or that the customer is sixty-five years of age or older or that the customer is handicapped. In addition, the notice shall advise the customer of the customer's right to work out a satisfactory deferred installment agreement for delinquent accounts and of the opportunity to enter into equal monthly payment plans for future service.

e.Inform the customer that service will be discontinued if the delinquent account is not paid within ten calendar days from the date of mailing or personal delivery of the notice, or if a satisfactory installment agreement is not made with the utility for payment of the delinquent bill.

If the customer elects to enter into a deferred installment agreement for delinquent accounts, service may not be terminated; however, the utility may discontinue service without further notice if the customer fails to pay the delinquent account on or before the date specified in the notice, or in accordance with the deferred installment agreement. The customer shall have the privilege of paying the delinquent account at any time prior to the actual disconnection of service, and the person directed by the utility to make the disconnection shall be deemed authorized and shall accept payment of the delinquent account if tendered to the person by the customer before actual disconnection of service is made.

2.It shall be the responsibility of all residential customers sixty-five years of age or older, handicapped, or having an emergency medical problem in the household, including life-sustaining appliances, such as kidney dialysis, to notify the utility of such status. To assist in such notification, all utilities shall annually include a preaddressed postage-paid postcard in the monthly billing mailed to all residential customers during the billing period ending October first. Such notice shall also be provided to all new customers in that service area when they are first provided service by the utility.

The postcard shall include the following questions:

YES NO

1. Is any member of your household 65 years of age or older, or handicapped? __ __

2. Do you have any emergency medical problem in your household? __ __

3. Do you desire that the area social service office or other appropriate financial assistance agency be notified in the event of a proposed disconnect? __ __

4. Do you desire that some other third party be contacted in the event of a disconnect? __ __ If so, name and address of person ________ __________________________________________

5. If you are having difficulty paying your utility bill, please contact our local service representative or business office so that we can work with you on your problem.

Utility Telephone Number _________________ Office Address ___________________________ Date ______ Name _____________________ Address __________________ __________________________ Signature

3.Service shall not be disconnected under this section on weekends, Fridays, state holidays, the day before a state holiday, or after twelve noon on any day. A report describing the total number of actual disconnects, date and time, type of customer, and amount of delinquency for each disconnected customer shall be filed monthly with the commission within ten days after the last day of each month.

4.Whenever service has been disconnected for nonpayment of a bill, before reconnection is made the customer shall pay the reconnection fee established in the utility's rate schedules; make a deposit pursuant to section 69-09-02-04 if all or a part of the previous deposit was used in settlement of the delinquent bill; and make a satisfactory settlement for the delinquent bill and for service rendered between the last meter reading date and the date service was disconnected.

5.In the event the customer disputes the amount of a bill for service, the customer may, to prevent disconnection for nonpayment, pay the disputed bill under protest to the utility.

Alternatively, the customer may request a formal hearing pursuant to section 69-02-02-02 in which case the utility shall not disconnect service for nonpayment of the disputed bill until a final decision has been issued by the commission. The utility shall immediately give the commission notice of the dispute and the commission may investigate the dispute. The utility shall refund to the customer any part of such payment made under protest found by the commission to be excessive.

6.A utility may not disconnect service to a customer for failure of the customer to pay for merchandise purchased from the utility; to pay for a different class of service furnished by the utility; to pay for service rendered to a previous occupant of the premises; or to pay the bill of another customer as guarantor thereof.

7.A utility may discontinue service to a customer for failure to comply with regulations of the utility on file with the commission pertaining to installation and operation of utilization equipment, or for use of equipment which interferes with, or adversely affects, the service to other customers, provided the customer has first been notified and afforded reasonable opportunity to change or disconnect such equipment.

8.A utility may discontinue service to a customer upon ten days' written notice if the meter or other equipment installed by the utility has been tampered with, or if there has been a diversion of service, or if the customer is utilizing gas before the energy has passed through a meter installed by the utility.

9.When a customer who has tenants is including the cost of utility services in the rent charged and the utility bill becomes delinquent, the utility before disconnecting service must also notify the tenants in writing at least ten days prior to the proposed termination date. The utility must allow each tenant to apply to become the customer of the utility in the tenant's own name, to have the service to the rental facility continued or resumed, and to pay the pro rata share of future bills. Such tenant-customer shall be subject to all the provisions of this chapter.

10.A utility may not discontinue service to a customer for nonpayment of a deposit.

January 1, 2002.

History

• History: Effective October 1, 1980; amended effective May 1, 1996; July 1, 1997; April 1, 2001;

N.D. Admin. Code 69-09-01-19 Extensions of service

1.The utility shall make all extensions to its mains and services where the investment is justified by the anticipated revenue to be received.

2.In the event the utility does not believe that the extension is justified, the commission shall, when so requested by one or more prospective customers desiring such extension and upon proper hearing, determine whether or not such extension should be made, and shall determine the respective amounts that the prospective customer or customers and the utility shall pay.

3.When so requested by a prospective customer engaged in the operation of a licensed trailer court for month-to-month parking of mobile homes, the utility shall make extension to its mains and services, subject to the provisions of subsections 1 and 2, to provide natural gas service through a master meter installed in a location within the confines of the mobile trailer court.

The trailer court operator shall have service facilities to individual trailer parking locations which the operator shall own and maintain constructed by competent and qualified persons, and shall arrange for inspection by and approval from a responsible inspector to assure that the service facilities from the meter location to the mobile home locations and gas service facilities and appliances to and within mobile homes to be served comply with piping and appliance ordinances or requirements of applicable rules and regulations of any authority vested with jurisdiction of the subject matter.

N.D. Admin. Code 69-09-01-20 Information to customers

A utility shall:

1.Keep copies of its rate schedules, rules, and regulations on file in every office where payments are received.

2.Send a statement to each customer containing a clear and concise explanation of the existing rate schedule, and any rate schedule applied for, that is applicable to that customer.

a.The statement shall be sent:

(1)Not later than sixty days after the date of commencement of service to the customer;

(2)Not later than thirty days after filing an increase in a rate schedule applicable to such customer. This statement must include for each of the major classes of customers for which there is a separate rate, a summary analysis which shows the economic impact of the proposed rate change and rate design changes, if any, for an average customer within the class based upon an average annual consumption and a statement that the rates are proposed only and, if the rates are suspended by the commission, the new rates will not be effective until commission action has been taken; and (3)As required by the commission under 69-02-04-01.

b.The statement must include notice to customers regarding the availability and location of the information required in subsection 1.

3.Include with each customer bill, at least once each year:

a.A clear and concise summary of the existing rate schedules applicable to each of the major classes of customers for which there is a separate rate;

b.An identification of any classes whose rates are not summarized; and

c.A notice calling the attention of the customer to the availability of alternative rate schedules for the customer's particular class of service and that, upon request, the utility will assist the customer in determining the billing for load conditions specified by the customer under various rate schedules. The customer, after selecting a particular rate schedule, shall take service under the rate schedule for a period of not less than twelve months, unless the rates are changed or there is a material change in the customer's load.

4.Send each customer upon request, without charge, a clear and concise statement of the actual consumption and cost of energy by the customer for each billing period during the prior year, unless the consumption and cost data is not reasonably ascertainable by the utility.

5.Provide, upon request, information and assistance to the extent reasonably possible so that customers may secure safe and efficient service. A utility must inform each customer of any change made or proposed to be made in any condition of service that would affect the efficiency of the service or the operation of appliances which may be in use by the customer.

6.File with the commission a sample copy of the statement format required by subsections 2 and 4 and a copy of the summary and notice required by subsection 3. Any format changes in statements or notices under this section must be filed immediately with the commission.

History

• History: Amended effective April 1, 2001.

N.D. Admin. Code 69-09-01-21 Billing basis

1.Bills for service will be rendered monthly unless service rendered covers a period less than a calendar month, or the customer requests and the utility consents to a more frequent billing.

The term "month" for billing purposes will mean the period between any two consecutive readings of the meter by the utility, such readings to be taken as nearly as practicable every thirty days. No customer will be billed more than twelve times a year unless the rate applicable to the particular case specifically provides for exceptions to the monthly basis, or unless a more frequent billing has been agreed upon as specified in this subsection. This will not prohibit the utility from accepting periodic payments during the month.

2.The difference between the gross and net bills constitutes a discount for prompt payment. All customers will be billed each month at gross rates except where schedules provide otherwise.

Discounts will be applicable in accordance with the terms of the rate schedule.

3.When one or more consecutive meter readings are missed, the utility may bill the customer on an estimated consumption and the difference adjusted when the meter is again read. The

basis for this estimate shall be the normal consumption for corresponding periods in the preceding year or normal consumptions of preceding months. At the first reading subsequent to the nonreading the bill will be computed by multiplying blocks of the rate by the number of months for which the meter reading covers, then compute the bill in accordance with the applicable rate adjusted in accordance with the foregoing provisions. Any minimum bills paid in the period for which the meter reading covers shall be credited to the total amount of the bill.

4.When a meter is overread by an amount that exceeds the following month's consumption, the correct consumption shall be ascertained for the two months, and the bill computed according to the provisions of subsection 3.

5.The utility shall provide each customer with proper metering equipment to indicate the correct reading to constitute a basis for monthly charges for service in accordance with the applicable rate schedule.

6.A customer may not have the customer's meter readings of more than one meter cumulative except where the utility has for its own convenience installed more than one meter for one class of service, and in such case the meter readings will be cumulated when billed.

7.Each customer will be billed separately on the customer's individual meter reading at the rate applicable to the particular class of service.

8.A customer is defined to include any person, firm, or corporation receiving service of one or more classes, and metered by one or more meters.

N.D. Admin. Code 69-09-01-22 Meter readings on bills

Bills rendered periodically to consumers for metered service shall show the readings of the meter at the beginning and end of the period for which the bills are rendered and the dates of the meter readings. On all bills which are computed on any other basis than a definite charge per unit of service, the other factors used in computing the bill shall be clearly stated so that the amount may be readily computed from the information appearing on the bill.

N.D. Admin. Code 69-09-01-23 Adjustment of bills for meter error

If on testing of any service meter, either by the utility or by the commission, such meter shall be found to have a percentage of error greater than that allowed by the commission, the following provisions for the adjustment of bills shall be observed:

1.Fast meters. When a meter is found to be fast in excess of two percent in tests made at the request of the consumer, the utility shall refund to the customer an amount equal to the excess charged for the gas incorrectly metered. The period over which the correction is to be made shall be one-half of the time elapsed since the last previous test. The period shall not exceed six months. No part of a minimum service charge shall be refunded.

2.Slow meters. When a meter is found to be slow in excess of two percent in tests made at the request of the consumer, the utility may make a charge to the consumer for the gas incorrectly metered. The period over which the correction is to be made shall be one-half of the time elapsed since the last previous test. The period shall not exceed six months. If a meter is found not to register for any period, the utility shall estimate the charge for the gas under similar conditions, preceding or subsequent thereto, or overused by averaging the amounts registered over similar and corresponding periods in previous years. Such action shall be taken only in cases of substantial importance where the utility is not at fault allowing the incorrect meter to be in service.

N.D. Admin. Code 69-09-01-24 Refunds

No application for refunds of any payments to a utility claimed to be in excess of the rules, regulations, schedules, rates, or tariffs shall be made to the commission after the expiration of six years from the date of payment.

N.D. Admin. Code 69-09-01-25 Resale

Gas service furnished on standard rates or contracts furnished by a public utility shall not be resold or caused to be resold by any customer unless the customer is engaged in the business of distributing gas and has a contract to this effect approved by the commission, and has a certificate of public convenience and necessity granted by the commission.

N.D. Admin. Code 69-09-01-26 Filing of rates

1.Each utility shall file with the commission its scheduled rates, rules, regulations, and practices in accordance with the statutory requirements.

2.Each rate filing shall stipulate the classification of service and application thereto, date effective, and the particular rate to be superseded. The filing shall be accompanied by a statement showing the reasons for making the filing and the estimated amount of annual revenue affected, based upon the previous year's business.

N.D. Admin. Code 69-09-01-27 Rate applications

Where more than one schedule of rates has been approved by the commission for the same class of service, it shall be the duty of the utility to advise the customer at the beginning of service of the rates and schedules which are available and typical bills for representative consumptions. Upon application by the customer, the utility shall make comparisons on the basis of past billings of the two rates to show which rate is the most advantageous to the customer. The customer upon selecting a rate after a trial period shall be required to remain on the selected rate for a period of not less than twelve months or unless that rate is sooner superseded.

N.D. Admin. Code 69-09-01-28 Filing of additional rules

Each utility shall have the right to file additional rules and regulations or terms and conditions of service applicable to the service given by the utility. The additional rules and regulations or terms and conditions are to be subject to approval by the commission in the manner provided by law.

N.D. Admin. Code 69-09-01-29 Advertising by gas utilities

1.Definitions. For purposes of this section:

a."Advertising" means the commercial use, by a gas utility, of any media, including newspaper, printed matter, radio, and television, in order to transmit a message to a substantial number of members of the public or to the utility's gas customers.

b."Institutional advertising" means advertising which has as its primary objective the enhancement or preservation of the corporate image of the utility and to present it in a favorable light to the general public and investors.

c."Political advertising" means any advertising for the purpose of influencing public opinion with respect to legislative, administrative, or electoral matters, or with respect to any controversial issue of public importance.

d."Promotional advertising" means any advertising for the purpose of encouraging any person to select or use the service or additional service of a gas utility or the selection or installation of any appliance or equipment designed to use the utility's service.

e."Institutional advertising", "political advertising", and "promotional advertising" do not include:

(1)Advertising which informs gas customers how they can conserve energy or can reduce peak demand for gas energy.

(2)Advertising required by law or regulations.

(3)Advertising relating to service interruptions, safety measures, or emergency conditions.

(4)Advertising concerning employment opportunities with a gas utility.

(5)Advertising which promotes the conservation of limited resources, the use of more plentiful resources, or the use of energy efficient appliances, equipment, or services.

(6)Any explanation or justification of existing or proposed rate schedules, or notifications of hearings thereon.

(7)Advertising determined by the commission to benefit customers and serve the public interest.

2.Any expenditure by the utility for institutional, promotional, or political advertising shall be excluded from operating expenses in the cost of service determination for ratemaking purposes.

3.Advertising expenditures which are reasonable in amount and which are not excluded by the provisions of this section may be included as operating expenses in the cost of service determination for ratemaking purposes.

History

• History: Effective October 1, 1980.

N.D. Admin. Code 69-09-01-30 Automatic adjustment clauses

1.As used in this section, the term "automatic adjustment clause" means a tariff provision that provides for increases or decreases, or both, without prior hearing, in rates reflecting increases or decreases, or both, in gas supply costs incurred by a natural gas utility.

2.An automatic adjustment clause that does not conform to principles set out in this section may not be in the public interest. This section contemplates that the filing of a proposed tariff which includes a nonconforming automatic adjustment clause may result in suspension of all or part of the tariff.

3.The automatic adjustment clause must be in a form that provides for periodic adjustments per unit of sales equal to the difference between gas supply costs per unit of sales included in base rate schedules and gas supply unit of sales projected for the adjustment period.

4.Gas supply costs included under the adjustment clause must be set forth tariff approved by the commission.

5.The utility shall maintain a balancing account in which the difference between the actual gas supply cost and the amount collected through the adjustment clause is recorded. The balancing account must accrue interest monthly at a rate equal to the three-month treasury bill rate as published monthly by the federal reserve board.

6.An automatic adjustment clause must include a balancing surcharge, which must be recalculated at least annually. The amount of the surcharge must equal the amount in the balancing account at the time of the proposed change that results from the recalculation divided by projected weather normalized sales volumes for the following twelve months.

7.Notice of change in the adjustment must be filed with the commission prior to billing. The notice must include:

a.Workpapers calculating the adjustment;

b.Copies of applicable pipeline tariffs and an explanation of regulatory approval status;

c.A history of the balancing account since the last surcharge update; and

d.To the extent possible, an explanation of market and other factors causing the change.

8.If a current price is in litigation or otherwise being collected subject to refund the utility shall so advise the commission, inform the commission of the final outcome, and record the outcome in the balancing account.

9.If a particular circumstance prevents the use of a standard provided in this section, or its use would result in an undue burden, the commission may permit deviation from the standard.

10.The commission may review an automatic adjustment clause at any time to ensure the maximum economies in those operations and purchases which affect the rates to which the clause applies. The commission's review may include an evidentiary hearing. In making its review, the commission may examine and, if appropriate, cause to be audited, the practices of a utility relating to costs subject to an automatic adjustment clause, and may require any filings and reports that may be necessary to carry out the review, including volumes, prices, and contracts for each supply source and a disclosure of any affiliation between the utility and the seller of natural gas or other items to the utility.

11.Each utility shall cause an independent audit of its automatic adjustment clause to be performed annually. A copy of the auditor's report must be filed annually with the commission.

History

• History: Effective February 1, 1995; amended effective July 1, 1997.

Chapter 69-09-02 Standards of Service - Electric

N.D. Admin. Code 69-09-02-01 Rates and regulations to be filed

1.Schedules of rates and charges for the furnishing of electric service, and rules and regulations pertaining thereto, shall be filed with the commission by each utility. The provisions thereof shall be definite and so stated as to minimize ambiguity or the possibility of misinterpretation.

The rate schedules, or the rules and regulations, shall include, together with such other information as may be deemed pertinent, the following:

a.The class of customers to which each rate applies. There shall also be shown any limitation on loads and type of equipment which may be connected, the price per unit of service, and the number of units per billing period to which the prices apply, the period of billing, the minimum bill, the method of measuring demands including method of calculating or estimating loads or minimums, definition of service classification and other terms used in the schedule, and any special terms and conditions applicable. The discount for prompt payment or penalty for late payment, if any, the period, if any, during which the net amount must be paid, and the date when bills become delinquent, shall be specified.

b.The nominal voltage at which service will be supplied and the type of service available (direct current, single or polyphase alternating current).

c.A list of cities and unincorporated communities where rates are applicable. If the utility has various rural rates, the areas where the rural rates are available shall be indicated.

d.A specification of such portion of service connection facilities as the utility furnishes, owns, and maintains, such as service drop, metering equipment, utilization control equipment, etc.

e.A statement of the type of special construction commonly requested by customers which the utility allows to be connected, e.g., underground service, and the terms and conditions upon which such construction will be permitted.

f.The regulations with which prospective customers must comply as a condition of receiving service, and the terms of any agreements required.

g.The regulations governing the establishment of credit, and the making of deposits, by customers to ensure payment for electric service.

h.The notice to the utility by a customer required to have service discontinued.

i.The regulations covering the furnishing of temporary, emergency, auxiliary, and standby service.

j.The regulations covering requirements for the installation of special facilities, such as demand-limiting devices or power factor corrective equipment.

k.The regulations governing the location of metering equipment, or other company equipment, and the connection of utilization equipment requiring special controls.

2.Any proposed change in rates or charges for the furnishing of electric service, or rules and regulations pertaining thereto, shall be filed with the commission not less than thirty days prior to the effective date thereof. The filing shall include a statement indicating the reason for the proposed change, the number of customers affected, the estimated increase or decrease in annual revenue and the basis for the estimate, and the existing rate schedules or rules and regulations, if any, to be superseded.

3.Special contracts for the sale of electric energy to customers shall be filed with the commission showing the name and address of the customer, the point where energy is delivered, the rate to be charged, term of contract, load conditions, voltage of delivery, and other provisions of the contract.

4.Standard contract forms for the sale of electric energy for streetlighting, municipal water pumping, or other services, shall be filed with the commission showing availability, rates, and all other terms and conditions thereof.

History

• General Authority: NDCC 28-32-02, 49-02-11
• Law Implemented: NDCC 49-02-03, 49-02-11

N.D. Admin. Code 69-09-02-02 Information available to customers

Superseded by section 69-09-02-02.1. 69-09-02-02.1. Information to customers.

A utility shall:

1.Keep copies of its rate schedules, rules, and regulations on file in every office where payments are received.

2.Send a statement to each customer containing a clear and concise explanation of the existing rate schedule, and any rate schedule applied for, that is applicable to that customer.

a.The statement shall be sent:

(1)Not later than sixty days after the date of commencement of service to the customer; and (2)Not later than thirty days after filing an increase in a rate schedule applicable to such customer. The statement must include for each of the major classes of customers for which there is a separate rate, a summary analysis which shows the economic impact of the proposed rate change and rate design changes, if any, for an average customer within a class based upon an average annual consumption and a statement that the rates applied for are proposed only and that, if the rates are suspended by the commission, the new rates will not be effective until commission action has been taken; and (3)As required by the commission under section 69-02-04-01.

b.The statement must include notice to customers regarding the availability and location of the information required in subsection 1.

3.Include with each customer bill, at least once each year:

a.A clear and concise summary of the existing rate schedules applicable to each of the major classes of customers for which there is a separate rate;

b.An identification of any classes whose rates are not summarized; and

c.A notice calling the attention of the customer to the availability of alternative rate schedules for the customer's particular class of service and that, upon request, the utility will assist the customer in determining the billing for load conditions specified by the customer under various rate schedules. The customer, after selecting a particular rate schedule, shall take service under the rate schedule for a period of not less than twelve months, unless the rates are changed or there is a material change in the customer's load.

4.Send each customer upon request, without charge, a clear and concise statement of the actual consumption and cost of energy by the customer for each billing period during the prior year, unless the consumption and cost data is not reasonably ascertainable by the utility.

5.Provide, upon request, information and assistance to the extent reasonably possible so that customers may secure safe and efficient service. A utility must inform each customer of any change made or proposed to be made in any condition of service that would affect the efficiency of the service or the operation of appliances which may be in use by the customer.

6.File with the commission a sample copy of the statement format required by subsections 2 and 4 and a copy of the summary and notice required by subsection 3. Any format changes in statements or notices under this section must be filed immediately with the commission.

History

• History: Effective October 1, 1980; amended effective April 1, 2001.

N.D. Admin. Code 69-09-02-03 Service connections

1.A utility shall not connect a customer for electric service until the customer has obtained all necessary permits from the proper authorities. Service may be denied to any customer for failure to comply with the applicable requirements of this chapter or with the service regulations of the utility on file with the commission.

2.A utility may require a customer to sign an application for electric service, and to make a deposit to ensure payment therefore, before making a service connection.

N.D. Admin. Code 69-09-02-04 Deposits and guarantees

1.An electric utility may require an applicant for service to make a deposit sufficient to cover the estimated charge for furnishing service to the customer for a sixty-day period. A receipt showing the amount of the deposit, the date the deposit was made, and the depositor's name shall be issued to the depositor. Each utility shall keep a deposit record showing the same information as shown on the depositor's receipt, and shall provide a method of repayment in case the depositor's receipt has become lost or destroyed.

2.The utility shall each year pay interest on such deposit at the rate paid by the Bank of North Dakota on a six-month certificate of deposit. Such rate will be determined as of the first business day of each year, on a six-month certificate of deposit with the smallest deposit required. The interest may be paid to the depositor, or may be deducted from the depositor's indebtedness to the utility for electric service. The payment or deduction for interest must be made during each calendar year, or whenever a deposit is refunded or service discontinued.

3.The utility may accept in lieu of a cash deposit a contract signed by a guarantor, satisfactory to the utility, whereby the payment of a specified sum not to exceed the required cash deposit is guaranteed. The term of such contract must be indeterminate, but it must automatically terminate when the customer gives notice of service discontinuance to the utility or a change in location covered by the guarantee agreement or thirty days after written request for termination is made to the utility by the guarantor. However, no agreement may be terminated without the customer having made satisfactory settlement for any balance which the customer owes the utility. Upon termination of a guarantee contract a new contract or a cash deposit may be required by the utility.

History

• History: Amended effective April 1, 1985.

N.D. Admin. Code 69-09-02-05 Discontinuance of service

Superseded by section 69-09-02-05.1. 69-09-02-05.1. Discontinuance of electric service.

1.A utility may disconnect service if the customer is delinquent in payment for services rendered.

However, no utility shall discontinue service to a customer for failure to pay for such service until the utility shall first have given the customer notice of its intention to discontinue such service on account of delinquency. The notice shall:

a.Be sent by first-class mail addressed to the customer at the place where service is rendered, except that in the case of residential customers sixty-five years of age or older, or for handicapped customers, personal notice by delivery is required. A copy of each notice must also be mailed to the nearest social service office and to any other appropriate financial assistance agency, providing that prior approval has been given by the customer pursuant to subsection 2.

b.Show the amount of the delinquency.

c.Include the telephone number of the public service commission.

d.Advise the customer of the customer's rights and remedies, including, but not limited to, the right of the customer to stay termination for up to thirty days if the customer advises the utility within the ten-day notice period that dangerous health conditions exist or that the customer is sixty-five years of age or older or that the customer is handicapped. In addition, the notice shall advise the customer of the customer's right to work out a satisfactory deferred installment agreement for delinquent accounts and of the opportunity to enter into equal monthly payment plans for future service.

e.Inform the customer that service will be discontinued if the delinquent account is not paid within ten calendar days from the date of mailing or personal delivery of the notice, or if a satisfactory installment agreement is not made with the utility for payment of the delinquent bill.

If the customer elects to enter into a deferred installment agreement for delinquent accounts, service may not be terminated; however, the utility may discontinue service without further notice if the customer fails to pay the delinquent account on or before the date specified in the notice, or in accordance with the deferred installment agreement. The customer shall have the privilege of paying the delinquent account at any time prior to the actual disconnection of service, and the person directed by the utility to make the disconnection shall be deemed authorized and shall accept payment of the delinquent account if tendered to the person by the customer before actual disconnection of service is made.

2.It shall be the responsibility of all residential customers sixty-five years of age or older, handicapped, or having an emergency medical problem in the household, including life-sustaining appliances, such as kidney dialysis, to notify the utility of such status. To assist in such notification, all utilities shall annually include a preaddressed postage-paid postcard in the monthly billing mailed to all residential customers during the billing period ending October first. Such notice shall also be provided to all new customers in that service area when they are first provided service by the utility.

The postcard shall include the following questions:

YESNO

1.Is any member of your household 65 years of age or older, or handicapped?

2.Do you have any emergency medical problem in your household?__ __

3.Do you desire that the area social service office or other appropriate financial assistance agency be notified in the event of a proposed disconnect?

4.Do you desire that some other third party be contacted in the event of a disconnect?

If so, name and address of person ___________________________________________

5.If you are having difficulty paying your utility bill, please contact our local service representative or business office so that we can work with you on your problem.

Utility Telephone Number _________________ Office Address ___________________________ Date ______Name _____________________ Address __________________ __________________________ Signature

3.Service shall not be disconnected under this section on weekends, Fridays, state holidays, the day before a state holiday, or after twelve noon on any day. A report describing the total number of actual disconnects, date and time, type of customer, and amount of delinquency for each disconnected customer shall be filed monthly with the commission within ten days after the last day of each month.

4.Whenever service has been disconnected for nonpayment of a bill, before reconnection is made the customer shall pay the reconnection fee established in the utility's rate schedules; make a deposit pursuant to section 69-09-02-04 if all or a part of the previous deposit was used in settlement of the delinquent bill; and make a satisfactory settlement for the delinquent bill and for service rendered between the last meter reading date and the date service was disconnected.

5.In the event the customer disputes the amount of a bill for service, the customer may, to prevent disconnection for nonpayment, pay the disputed bill under protest to the utility.

Alternatively, the customer may request a formal hearing pursuant to section 69-02-02-02 in which case the utility shall not disconnect service for nonpayment of the disputed bill until a final decision has been issued by the commission. The utility shall immediately give the commission notice of the dispute, and the commission may investigate the dispute. The utility shall refund to the customer any part of such payment made under protest found by the commission to be excessive.

6.A utility may not disconnect service to a customer for failure of the customer to pay for merchandise purchased from the utility; to pay for a different class of service furnished by the utility; to pay for service rendered to a previous occupant of the premises; or to pay the bill of another customer as guarantor thereof.

7.A utility may discontinue service to a customer for failure to comply with regulations of the utility on file with the commission pertaining to installation and operation of utilization equipment, or for use of equipment which interferes with, or adversely affects, the service to other customers, provided the customer has first been notified and afforded reasonable opportunity to change or disconnect such equipment.

8.A utility may discontinue service to a customer upon ten days' written notice if the meter or other equipment installed by the utility has been tampered with, or if there has been a diversion of service, or if the customer is utilizing electricity before the energy has passed through a meter installed by the utility.

9.When a customer who has tenants is including the cost of utility services in the rent charged and the utility bill becomes delinquent, the utility before disconnecting service must also notify the tenants in writing at least ten days prior to the proposed termination date. The utility must allow each tenant to apply to become the customer of the utility in the tenant's own name, to have the service to the rental facility continued or resumed, and to pay the pro rata share of future bills. Such tenant-customer shall be subject to all the provisions of this chapter.

10.A utility may not discontinue service to a customer for nonpayment of a deposit.

January 1, 2002.

History

• History: Effective October 1, 1980; amended effective May 1, 1996; July 1, 1997; April 1, 2001;

N.D. Admin. Code 69-09-02-06 Continuity of service

1.An electric public utility is responsible for ensuring reliable service.

2.Each utility shall make every reasonable effort to prevent interruptions of service, and when such interruptions occur shall endeavor to reestablish service within the shortest possible time. Whenever the service is necessarily interrupted or curtailed for the purpose of working on equipment, it shall be done at a time which, if at all practicable, will cause the least inconvenience to customers, except in cases of emergency.

3.Each utility shall keep a record of all interruptions to service affecting the entire distribution system of any single community or an important division of a community, and include in the record the date and time of interruption, the date and time service was restored, and, if known, the cause of each interruption. Service interruption records shall be kept for a period of six years.

4.If an electric public utility fails to meet its obligation to provide reliable service to customers, the commission may require action, assess disallowances or fines, or provide a penalty. A penalty, disallowance or fine, or action must take into consideration the nature, circumstances. and gravity of the violation, degree of culpability, history of prior service interruptions, and good faith attempts to ensure reliability.

5.By May first each year, each electric public utility shall file with the commission the records required by this section. The commission, at any time, may upon notice to the electric public utility may require a filing of the records required by this section for a specified time period or specific interruption.

6.Each electric public utility shall include in its annual May first filing, reliability statistics for the previous calendar year, including institute of electrical and electronics engineers standard 1366 indices system average interruption frequency index, system average interruption duration index, customer average interruption duration index. Each utility shall include with this filing the datapoints used to calculate each of the above indices and a detailed breakdown of each major event day. These statistics must be compiled by each electric public utility for its North Dakota distribution system.

History

• History: Amended effective January 1, 2022.

N.D. Admin. Code 69-09-02-07 Extension of service

1.It shall be the obligation of each utility to make reasonable extensions of its lines and services to new customers within any area in which it is authorized to serve.

2.Each utility shall file with the commission its rules for extending service to new customers, and shall file any changes in the rules which may be made from time to time.

3.If the utility does not consider that an extension within its service area is justified, the commission, upon request of one or more prospective customers to be served by the extension, may set the matter for public hearing to determine if the extension should be made, and the terms and conditions thereof.

N.D. Admin. Code 69-09-02-08 Temporary service

1.Temporary service is defined as service to circuses, carnivals, traveling shows, construction projects, and all other purposes which from their very nature evidently will be of short duration.

2.A customer taking temporary service shall pay the regular rates applicable to the class or classes of service rendered for all energy used, and, in addition, shall pay the installation and removal cost, less salvage value, of facilities installed by the utility to furnish temporary service to the customer.

3.The utility may require the customer to make an advance deposit sufficient to cover the estimated cost of furnishing temporary service.

N.D. Admin. Code 69-09-02-09 Customer complaints

Each utility shall promptly investigate and keep a record of written complaints received from its customers in regard to safety, service, or operation of its system. The record shall show the name and address of the complainant, the date and nature of the complaint, and its disposition and the date thereof. The complaint records shall be kept for a period of three years.

N.D. Admin. Code 69-09-02-10 Meter readings

1.Readings of all meters used for determining charges to customers shall be made each month.

The term "month" means the period between any two consecutive regular meter reading dates, which shall be as nearly as practicable at thirty-day intervals. The meter reading date may be advanced or postponed not more than five days without adjustment of the billing for the period.

2.The utility may read meters used for determining charges to customers less frequently than once each month provided authorization thereof is obtained from the commission.

3.The utility may obtain the meter readings on a form supplied to the customer provided a utility representative reads the meter at least once each three months, and when there is a change of occupancy of the premises, unless otherwise authorized by the commission.

4.Records of all meter readings shall be maintained for a period of six years.

N.D. Admin. Code 69-09-02-11 Billing

1.Bills for electric service shall be rendered monthly, unless otherwise authorized by the commission, or unless service is rendered for a period of less than a month. The term "month" as used for billing purposes means the period between any two consecutive regular meter reading dates, which shall be as nearly as practicable at thirty-day intervals. Bills shall be prorated for periods of less than one month when service is begun or terminated between regular meter reading dates. Bills shall be prorated for a fraction of a month on a daily basis, unless a different basis for proration of bills for fractions of a month is provided in the utility's service regulations on file with the commission.

2.Each bill shall show the present meter reading; the date of the present meter reading; the number of kilowatt hours consumed; the demand, if used for billing purposes; the date or time when the bill is due; the gross and net amounts of the bill and the date or time after which the gross amount must be paid, or the net amount of the bill and the date or time after which the penalty applies and the amount thereof; and identity of the class of service or rate schedule under which the bill is computed. Estimated bills and prorated bills shall be distinctly marked as such.

3.The utility may, if it is unable to obtain a meter reading, bill the customer on an estimated consumption. The basis for the estimate shall be the normal consumption for a corresponding period during the preceding year, or average consumption during the three preceding months.

4.If the period between meter readings is more than one month, the bill for the entire period may be computed on the assumption of uniform monthly use of service during the entire period.

However, if estimated monthly bills have been rendered during the period and the customer does not object thereto, bills for the interim period between meter readings need not be recomputed. If the customer objects to an estimated bill, or to a bill based on uniform monthly use, and presents reasonable evidence of zero consumption, or of material variation in consumption, during one or more months of the interim billing period, the bill shall be recomputed on the basis of actual use during each month.

5.Bills for service shall be rendered within thirty days from the present meter reading date. A record of all bills for electric service rendered to customers shall be maintained for a period of six years.

N.D. Admin. Code 69-09-02-12 Adjustment of bill for meter errors

1.Whenever a watt-hour meter is found upon a test made at the request of the customer to have an average error of more than two percent, or a demand meter is found to have an error of more than the allowable limits specified in these rules, an adjustment of bills for service shall be made. The amount of the adjustment shall be calculated on the basis that the metering equipment should be one hundred percent accurate. The utility shall refund to the customer any excess charges for incorrectly metered electric service for a period equal to one-half the time elapsed since the last previous meter test, but not to exceed six months. The utility may charge the customer for any deficiency in billing for incorrectly metered electric service for a period equal to one-half the time elapsed since the last previous meter test, but not to exceed six months. Adjustments shall be based on actual monthly consumptions.

Errors in meter registrations due to "creep" shall be calculated by timing the rate of "creeping" and assuming that the "creeping" affected the meter registration for one-half the time elapsed since the last previous meter test, but not to exceed six months.

2.When the average meter error cannot be determined by test because of failure of part or all of the metering equipment, it shall be permissible to use the registration of check metering installations, if any, or to estimate the quantity of energy used on all available data. The customer shall be advised of the metering equipment failure, and of the basis for the estimated bill. Any adjustment because of failure of metering equipment shall be from the date of the metering equipment failure, if known; or if not known, for a period equal to one-half the time elapsed since the last previous meter test, but not to exceed six months.

N.D. Admin. Code 69-09-02-13 Refunds and deficiency billings

Application for refund of any payment to a utility claimed to be in excess of established rates schedules, or rules and regulations pertaining thereto, shall be made within six years from the date of payment. A utility may not retroactively bill a customer a deficiency charge for service rendered more than six years prior to the date of the bill.

N.D. Admin. Code 69-09-02-14 Classification of service

1.Residential service is defined as service for general household purposes in space occupied as living quarters, such as single private residences, single apartments, fraternity houses and sorority houses, and for garages, or other auxiliary buildings on the same premises used by the residential customer.

2.Commercial service is defined as service to a business enterprise in space occupied and operated for commercial purposes, such as stores, offices, shops, hotels, garages, wholesale houses, filling stations, barber shops, beauty shops, and any other space occupied for commercial purposes.

A business enterprise operated by an individual, a partnership, or a corporation, may include more than one type of business activity at the same location.

A landlord renting space to separate business enterprises in the same building may take electric service through a single meter on the commercial service rate provided electric service is furnished for occupants of the building as part of the rent, subject, however, to the provisions restricting master meters contained in section 69-09-02-37.

If a single business enterprise occupies more than one unit of space in the conduct of the same business, each separate unit will be metered individually and considered a separate service unless the customer makes provision for the necessary circuits to connect the separate units to permit the use of a single meter.

3.A customer occupying a building for residential and commercial purposes jointly may combine the customer's residential and commercial use on the applicable commercial service rate.

4.Other classes of electric service furnished by the utility shall be defined in applicable rate schedules, or in rules and regulations pertaining thereto. Service to customers for which no specific rate schedule is applicable shall be billed on the commercial or general service rate.

History

• History: Amended effective October 1, 1980.

N.D. Admin. Code 69-09-02-15 Resale and submetering

Electric service furnished by a public utility under established rate schedules shall not be resold or submetered by a customer unless the rate schedule under which the customer receives service specifically so provides.

N.D. Admin. Code 69-09-02-16 Measuring customer service

1.All electrical energy sold to customers shall be measured by commercially acceptable measuring devices owned and maintained by the utility, except where it is impracticable to meter loads, such as multiple streetlighting, or temporary or special installations, in which case the consumption may be estimated. Every reasonable effort shall be made to measure at one point all electrical quantities necessary for billing a customer under a given rate.

2.All electric service to the same class of customers rendered under the same rate schedule shall be metered with instruments having generally similar characteristics.

N.D. Admin. Code 69-09-02-17 Standard frequency

1.Each utility furnishing alternating current service shall adopt a standard service frequency for its system.

2.Under normal operating conditions the utility shall maintain a frequency of not more than plus or minus three percent of standard frequency.

3.Variations in frequency in excess of those specified herein caused by service interruptions, the action of the elements, temporary separation of parts of the system, or other causes beyond the control of the utility shall not be considered violations of this section.

N.D. Admin. Code 69-09-02-18 Standard voltage and allowable variation

1.Each utility furnishing electric service shall adopt a standard nominal voltage, or voltages, as may be required by the design of its distribution system for its entire constant voltage service area or for each of the several districts into which the distribution system, or systems, may be divided. The voltage maintained at the utility's service terminals as installed for each customer shall be reasonably constant with a variation in voltage at any time of not more than seven percent above or below nominal voltage. A utility may furnish electric service to a particular customer, or to a group of customers at a specific location, on its system under conditions of voltage variation greater than seven percent if approval thereof is obtained from the commission.

2.Variations in voltage in excess of those specified herein caused by service interruptions, the action of the elements, temporary separation of parts of the utility's system, infrequent and unavoidable fluctuations of short duration, or other causes beyond the control of the utility shall not be considered a violation of this section.

N.D. Admin. Code 69-09-02-19 Voltage measurement and voltage records

1.Each utility shall employ at least one portable indicating voltmeter, and at least one device capable of producing recorded voltage measurements in continuous service at the plant, office, or on a customer's premises. Each utility shall make a sufficient number of voltage measurements to indicate the character of the service furnished to its customers and to satisfy the commission, upon request, of its compliance with established voltage requirements. All voltage measurement records shall be available for inspection by the commission for a period of one year.

2.Each recording voltmeter shall be checked with an indicating voltmeter when it is placed in operation and when it is removed, or periodically if the instrument is in a permanent location.

History

• History: Amended effective January 1, 2002.

N.D. Admin. Code 69-09-02-20 Accuracy of portable indicating instruments

All portable indicating electrical instruments used for determining quality of service to customers or for billing purposes, such as voltmeters, ammeters, and wattmeters, shall be checked against suitable secondary reference standards at least once in each twelve months. If the portable indicating instrument is found appreciably in error at zero, or in error by more than two percent of indication at full scale deflection, it shall be adjusted to indicate correctly.

N.D. Admin. Code 69-09-02-21 Accuracy of watt-hour meters

Watt-hour meters used for measuring electrical energy furnished to customers shall:

1.Be of proper design for the circuit on which they are used, be in good mechanical condition, and shall register correctly.

2.Not creep at "no load". A meter shall be considered to creep when the load wires are disconnected, and potential is impressed, if the disk makes more than one full revolution in five minutes or less.

3.Be accurate, when used on alternating current circuits, to within plus or minus two percent, at unity power factor, on light load (ten percent of meter reading) and on full load (one hundred percent of meter rating); and to within plus or minus three percent, at fifty percent lagging power factor, on full load (one hundred percent of meter rating).

4.Be accurate, when used on direct current circuits, to within plus or minus two percent on light load (ten percent of meter rating) and on full load (one hundred percent of meter reading).

5.If polyphase meters, have their elements in balance within two percent of full load (one hundred percent of meter rating) at unity power factor, and at fifty percent lagging power factor.

6.If used in conjunction with instrument transformers, for which laboratory test records are available, be adjusted so that the overall accuracy of the metering installation will meet the requirements of this section.

N.D. Admin. Code 69-09-02-22 Accuracy of demand meters

Demand meters, demand registers, or demand attachments used to measure electric service to customers shall: be in good mechanical and electrical condition; have proper constants, indicating scale, contact device, and resetting device; not register at no load; and be accurate within the following limits:

1.Curve-drawing meters which record quantity-time curves, and integrated-demand meters, shall be accurate to within plus or minus two percent of full scale deflection throughout their working range. Timing elements measuring specific demand intervals shall be accurate to within plus or minus two percent, and the timing element which serves to provide a record of the time of day when the demand occurs shall be accurate to within plus or minus four minutes in twenty-four hours.

2.Lagging-demand meters shall be accurate to within plus or minus four percent of full scale deflection.

N.D. Admin. Code 69-09-02-23 Multipliers and test constants

1.Meters which are not direct reading, and meters operating from instrument transformers, shall have the multiplier plainly marked on the dial of the instrument or other suitable location, and all charts taken from recording meters shall be marked with the date of the record, the meter number, the customer, and the chart multiplier.

2.The register ratio shall be marked on all meter registers. The watt-hour constant for the meter itself shall be shown on all watt-hour meters.

N.D. Admin. Code 69-09-02-24 Instrument transformers

1.Instrument transformers used in conjunction with metering equipment to measure electric energy furnished to customers shall be in proper mechanical condition and shall have electrical insulation satisfactory for the service on which used.

2.The accuracy of current transformers shall comply with the requirements of American standards association accuracy class 1.2.

3.The accuracy of potential transformers shall comply with the requirements of American standards association accuracy class 0.6.

4.Instrument transformers for special installations may be tested in a laboratory before installation provided the last records are kept to aid in adjusting the meter used in conjunction with the transformer.

5.Current transformers shall be tested for short-circuited primary or secondary turns, high resistance connections, and proper wire connections whenever the metering installation is tested for accuracy.

6.The nameplate voltage ratio of potential transformers shall be checked whenever the metering installation is tested for accuracy.

N.D. Admin. Code 69-09-02-25 Meter testing equipment

1.Each utility shall maintain sufficient laboratories, meter testing shops, secondary standards, instruments, and facilities to determine the accuracy of all types of meters and measuring devices used by the utility.

2.Each utility maintaining primary standards such as precision wattmeters, volt boxes, resistances, and timing devices shall have such standards certified at the time of purchase as to accuracy by a recognized laboratory other than that of the manufacturer of the standard.

3.Utilities not maintaining standardization laboratories may obtain authorization from the commission to have their standards certified for them by an approved laboratory.

4.Secondary watt-hour meter standards shall not be in error by more than plus or minus three-tenths of one percent at loads and voltages at which they are to be used, and shall not be used to check or calibrate working standards unless the secondary standard has been checked and adjusted, if necessary, within the preceding twelve months. A history and calibration record shall be kept for each secondary standard watt-hour meter.

5.Any two or more of at least three watt-hour meters may be used as a secondary standard to check portable rotating standards provided there is no discrepancy in accuracy between any two of the watt-hour meters used by more than two-tenths of one percent at standard test loads. Calibration and history records shall be maintained for each of the meters used as secondary standards.

6.Secondary standard indicating instruments shall not be in error by more than plus or minus one-half of one percent of indication at commonly used scale deflections, and shall not be used to check or calibrate portable indicating instruments unless the secondary standard has been checked and adjusted, if necessary, within the preceding twelve months. A calibration record shall be maintained for each standard.

7.All working rotating standards, when regularly used, shall be compared with a secondary standard at least once a month if they are of the commutator type, and at least once in every six months if of the induction type. Working rotating standards infrequently used shall be compared with a secondary standard before they are used.

8.Working rotating standards shall be adjusted, if necessary, so that their accuracy will be within plus or minus three-tenths of one percent at unity power factor, and within plus or minus one-half of one percent at fifty percent lagging power factor at all voltages and loads at which the standard may be used. A history and calibration record shall be kept for each working rotating standard.

9.The meter accuracies herein required for all primary, secondary, and portable standards shall be referred to one hundred percent. Service measuring equipment shall be adjusted to within the accuracies required assuming the portable test equipment to be one hundred percent accurate; provided, that a utility may use calibration records to compensate for known errors of secondary standards and working standards in adjusting service measuring equipment.

N.D. Admin. Code 69-09-02-26 Meter testing

1.The testing of any unit of metering equipment shall consist of a comparison of its accuracy with a standard of known accuracy. Meters shall be adjusted as closely as practicable to the condition of zero error, and may be checked for accuracy at the point where they are installed, or at a central testing laboratory, or in a mobile testing laboratory.

2.All meters shall be tested for accuracy before initially placed in service. Metering equipment associated with instrument transformers shall be tested for accuracy on the customer's premises within sixty days after installation and whenever the instrument transformers are changed.

3.Meters shall be tested for accuracy at unity power factor, provided that polyphase meters shall also be checked for accuracy at fifty percent power factor whenever tested.

4.Watt-hour meters, and associated equipment such as demand measuring devices, shall be periodically tested for accuracy in accordance with a plan approved by the commission or the following schedule:

PERIODIC TEST SCHEDULE

Meter Description To Be Tested At Least Once in Every Alternating current meters:

Up to and including twelve kilovolt-amperes120 months Over twelve kilovolt-amperes up to and including36 months one hundred kilovolt-amperes Over one hundred kilovolt-amperes12 months Direct current meters:

Up to and including six kilowatts42 months Over six kilowatts up to and including one hundred kilowatts18 months Over one hundred kilowatts12 months The kilovolt-ampere rating of an alternating current, single-element meter, or the kilowatt rating of a direct current meter, is the product of the rated voltage and the rated current. In the case of polyphase or multielement meters, the rating is the product of the rated voltage and the rated current multiplied by the number of meter elements. When meters are connected to and tested in conjunction with instrument transformers, the nominal rating of the transformer shall be used in the determination of the kilovolt-ampere rating of the metering equipment.

5.An electric service utility shall test the accuracy of any meter upon request of the customer, shall provide the customer with a report of the test results, and shall keep the complete original test record and a copy of the report on file in the utility's office.

6.A customer may request in writing to the commission that the utility's test be supervised by a commission representative.

7.The customer may not be charged for the test provided the customer requests no more than one test each twelve-month period, otherwise the utility may charge a tariffed rate. The charge must be waived if the meter error is more than plus or minus two percent.

History

• History: Amended effective July 1, 1997.

N.D. Admin. Code 69-09-02-27 Determination of average meter error

Whenever a metering installation is found upon any test to be in error by more than two percent at any test load, the average error shall be determined as follows:

1.If the metering installation is used to measure a load which has practically constant characteristics, such as a streetlighting load, the meter shall be tested under similar conditions of load and the accuracy of the meter "as found" shall be considered as the average error.

2.If a single-phase, or direct current, metering installation is used on a varying load, the average error shall be the weighted algebraic average of the error at light load, with a weighting of one, and the error at heavy load, with a weighting of four.

3.If a polyphase metering installation is used on a varying load, the average error shall be the weighted algebraic average of the error at light load (unity power factor) with a weighting of one, the error at heavy load (unity power factor) with a weighting of four, and the error at heavy load (fifty percent lagging power factor) with a weighting of two.

N.D. Admin. Code 69-09-02-28 Meter records

1.Each utility shall keep a history record of each unit of metering equipment used for measuring service to customers showing date of purchase; utility's identification number; essential nameplate data; associated equipment, if any; dates of tests; results of all "as found" and "as left" tests; and locations where installed together with dates of installation and removal. A utility may keep separate records at different locations on its system for each unit of metering equipment in lieu of a history record provided that said records include all data required on a

history record and that the two most recent tests records are retained. Only the most recent test record need be kept if a complete history record is maintained.

2.A test record shall be made whenever a unit of metering equipment is tested. The test record shall show the utility's identification number; nameplate data; location of the unit; equipment with which the device is associated; date of test; reason for test; register readings before and after the test; a statement as to whether the meter "creeps", and in case of creeping, the rate; a statement of "as found" and "as left" accuracies sufficiently complete to permit checking of the calculations; an indication that all required checks have been made; a statement of repairs made, if any; identification of test standard used; and name of person making the test.

3.Each utility shall file with the commission annually a summary report of all meter tests made during the year on forms to be supplied by the commission.

N.D. Admin. Code 69-09-02-29 Location of meters

1.Meters on customers premises shall be installed in locations free of conditions detrimental to the metering equipment, and where the metering equipment will not create a hazard, or be inconvenient for servicing or reading. Meters shall be located so that there is not less than three feet [.91 meters] of unobstructed space in front of the meter, and so that the top of the meter is not less than four feet [1.22 meters], nor more than seven feet [2.13 meters], above the floor, ground, or permanent platform.

2.Outdoor meters shall be mounted securely on rigid structures such as yard poles, houses, garages, or other buildings. Outdoor meters shall be located so that they will not be subject to damage by passing objects.

3.Indoor metering equipment shall be located as near as practicable to the point where service enters the building, and shall be mounted securely on a permanent structure in a location free from excessive moisture, high temperature, and vibration. Meters shall not be placed in attics, living rooms, bathrooms, toilets, bedrooms, over doors or windows, or in any location where annoyance or inconvenience might be caused by servicing or reading the meter. When two or more meters are installed in an office, apartment, or other building, the meters shall be placed side by side on the same meter board with a distance between centers of not less than seven and one-half inches [19.05 centimeters] for alternating current meters and fifteen inches [38.1 centimeters] for direct current meters.

N.D. Admin. Code 69-09-02-30 Public interest

The public has a paramount right to:

1.All forms of public service efficiently rendered at a reasonable cost.

2.Require that public service facilities shall be so constructed and maintained as not to constitute a hazard to life and property.

3.Establish regulations which will permit the full economic use of public rights of way for the distribution of all classes of utility service.

N.D. Admin. Code 69-09-02-31 Cooperation

A utility contemplating new construction, or changes in construction or operating conditions of its facilities, should make every reasonable effort to avoid conflicts or interference with other public service facilities in situations or proximity. It shall be the duty of utilities concerned to cooperate, and to adopt, after full consideration of all factors, the best engineering solution to problems of conflict and interference due to unavoidable proximity of facilities.

N.D. Admin. Code 69-09-02-32 Advance notice

It shall be the duty of a utility to give advance notice (at least sixty days where practicable, but not less than twenty days) to other utilities serving in the same general territory of contemplated new construction, or of changes in construction of operating conditions of its facilities in situations of existing or anticipated proximity.

N.D. Admin. Code 69-09-02-33 Principle of least cost

It shall be the duty of utilities, when coordination of facilities is necessary to avoid or mitigate conflicts or interference, to adopt, after a full consideration of all factors, the most practicable method which provides the greatest present and future economy and convenience in rendering the services involved irrespective of whether the selected method applies to electric supply or signal systems or both.

N.D. Admin. Code 69-09-02-34 Location of lines

In situations where communication lines and electric supply lines on the same right of way are not to occupy joint poles or where either kind of line is alone on a right of way, all communication lines should be placed on one side of the right of way and all electric supply lines should be placed on the other side.

In the construction or reconstruction of electric supply and communication lines, unnecessary crossings of the right of way from side to side should be avoided.

Overbuilding of one line by another line should be avoided where practicable. Where necessary for different types of lines to occupy the same side of a right of way, joint use is generally preferable to overbuilding.

N.D. Admin. Code 69-09-02-35 Installation and maintenance - Conformance to National Electrical Safety Code

The installation and maintenance of electric supply and communication lines shall conform to rules and regulations established in the 2017 edition of the National Electrical Safety Code which is adopted by reference. Copies of these regulations may be obtained from the public service commission, state capitol, Bismarck, North Dakota 58505-0480.

July 1, 1997; March 1, 2003; July 1, 2008; April 1, 2013; July 1, 2017.

History

• History: Amended effective September 1, 1984; January 1, 1988; December 1, 1990; August 1, 1993;

N.D. Admin. Code 69-09-02-36 Raising and lowering electric supply and communication lines

1.If the circumstances necessitate the raising or lowering of electric supply or communication lines to permit the movement of buildings or other bulky objects, the person in charge of such movement shall give the official in charge of the lines preliminary advance notice thereof not less than ninety-six hours prior to the time of crossing, unless a shorter notice is mutually agreed upon. The preliminary advance notice shall include the following information:

a.The name and address of the owner, and mover, of the building or other object to be transported.

b.The location of the proposed crossings.

c.The height, when mounted, of the building or other object aboveground.

The person in charge of the movement of a building or other bulky object shall give the official in charge of electric supply or communication lines final advance notice not less than twenty-four hours prior to the time of crossing, and shall then specify the day and hour of arrival at the proposed crossings.

If, in the opinion of the official in charge of electric supply or communication lines, the proposed crossings will necessarily cause a serious interruption of services provided by the line, then the raising or lowering of the line shall be made at such time as to cause least inconvenience to the users thereof. The time of crossing, in that case, shall be fixed by the official in charge of the line after due consideration of all factors involved, including any requirements imposed by law upon the mover; but, except by mutual agreement, the time shall not be later than twenty-four hours after the time of crossing specified in the final advance notice. However, if, in the opinion of the official, any interruption of service provided by the line will materially affect public health, safety, or welfare, then the official in charge of the line may petition the commission for authority to refuse the request for crossing. The official in charge of electric supply or communication lines may require that all requests for crossing of lines under the official's supervision be in writing.

2.The person in charge of the movement of a building or other bulky object which will necessitate the raising or lowering of electric supply or communication lines shall ascertain, in advance, the ownership of all lines along the proposed route of travel, and shall give the official in charge of each line due notice of proposed crossings as provided for in this section.

3.The official in charge of electric supply or communication lines may require that any person requesting the raising or lowering thereof to permit the movement of a building or other bulky object shall deposit, in advance, the estimated cost of raising or lowering and restoring the lines. The official shall promptly notify the person requesting the raising or lowering of lines that a deposit will be required. The deposit shall be made not less than twenty-four hours prior to the time of the proposed crossing, unless a lesser time is agreed upon. Any amount of the deposit in excess of the cost of raising or lowering and restoring the lines shall be refunded to the depositor. If the cost thereof exceeds the deposit, the person making the request shall promptly pay any amount in excess of the deposit.

4.After compliance with all requirements provided for in this section, the official in charge of the electric supply or communication lines shall proceed to raise or lower the lines to permit the movement of buildings or other bulky objects at the time agreed upon, or as specified in the final advance notice.

5.The person in charge of the movement of a building or other bulky object shall notify the official in charge of electric supply or communication lines in advance of the specified time of crossing of any probable delay in arriving at the proposed crossings. Likewise, the official in charge of the lines shall promptly notify the mover of any unavoidable delay in raising or lowering lines at the proposed crossings.

6.Any person required to pay for the raising or lowering and restoring of electric supply or communication lines shall, upon request, be furnished an itemized statement showing in detail all costs incurred.

7.If any charge is made for the raising or lowering and restoring of electric supply or communication lines, the official in charge of said lines shall make and keep, for a period of not less than one year, a record of all direct costs incurred each time the lines under the official's supervision are raised or lowered to permit the movement of a building or other bulky object. However, if the cost of raising or lowering and restoring a particular line exceeds fifty dollars, records shall be made and kept, for a period of not less than one year, showing the following additional information:

a.The original written request for crossings, if submitted in writing, and a notation of the day and hour received.

b.A memorandum of an oral request for crossing, noting thereon the day and hour received, and any other pertinent information.

c.The location of the crossing, or crossings.

d.The estimated cost of the crossings, if quoted; and the amount of deposit received, if any.

e.The day and hour the electric supply or communication lines were ready for crossing.

f.The day and hour the crossing was completed.

g.The number of wires involved, whether wires were raised or lowered to permit crossing, and any other pertinent information regarding work performed and time required to complete the job.

h.The vertical clearance in feet [meters] of lowest wire aboveground before wires were raised, if the owner or mover of the building or other object requests that information.

i.If an electric supply line, the normal voltage between wires, and whether line was deenergized.

j.Names of crew members assigned to job; hours worked by each crew member; method of transportation, indicating miles [kilometers] traveled or time required; and a list of materials used on the job.

8.The charges which may be assessed for the raising or lowering and restoring of electric supply or communication lines shall be the direct cost incurred.

9.Any official in charge of electric supply or communication lines who fails, except for good cause, to have the lines raised or lowered to permit the movement of buildings or other bulky objects at the time specified, as provided for in this section, shall be deemed to have violated this chapter.

History

• General Authority: NDCC 49-02-21
• Law Implemented: NDCC 49-02-21

N.D. Admin. Code 69-09-02-37 Electric master metering prohibited - Exception

Repealed effective April 1, 2013.

N.D. Admin. Code 69-09-02-38 Advertising by electric utilities

1.Definitions. For purposes of this section:

a."Advertising" means the commercial use, by an electric utility, of any media, including newspaper, printed matter, radio, and television, in order to transmit a message to a substantial number of members of the public or to the utility's electric customers.

b."Institutional advertising" means advertising which has as its primary objective the enhancement or preservation of the corporate image of the utility and to present it in a favorable light to the general public and investors.

c."Political advertising" means any advertising for the purpose of influencing public opinion with respect to legislative, administrative, or electoral matters, or with respect to any controversial issue of public importance.

d."Promotional advertising" means any advertising for the purpose of encouraging any person to select or use the service or additional service of an electric utility or the selection or installation of any appliance or equipment designed to use the utility's service.

e."Institutional advertising", "political advertising", and "promotional advertising" do not include:

(1)Advertising which informs electric customers how they can conserve energy or can reduce peak demand for electric energy.

(2)Advertising required by law or regulations.

(3)Advertising relating to service interruptions, safety measures, or emergency conditions.

(4)Advertising concerning employment opportunities with an electric utility.

(5)Advertising which promotes the conservation of limited resources, the use of more plentiful resources, or the use of energy efficient appliances, equipment, or services.

(6)Any explanation or justification of existing or proposed rate schedules, or notifications of hearings thereon.

(7)Advertising determined by the commission to benefit customers and serve the public interest.

2.Any expenditure by the utility for institutional, promotional, or political advertising shall be excluded from operating expenses in the cost of service determination for ratemaking purposes.

3.Advertising expenditures which are reasonable in amount and which are not excluded by the provisions of this section may be included as operating expenses in the cost of service determination for ratemaking purposes.

History

• History: Effective October 1, 1980.

N.D. Admin. Code 69-09-02-39 Automatic adjustment clauses

1.As used in this section, the term "automatic adjustment clause" means a tariff provision that provides for increases or decreases, or both, without prior hearing, in rates reflecting increases or decreases, or both, in energy costs incurred by an electric utility.

2.An automatic adjustment clause that does not conform to the principles set out in this section may not be in the public interest. This section contemplates that the filing of a proposed rate tariff that includes a nonconforming automatic adjustment clause may result in suspension of all or part of the tariff.

3.The automatic adjustment clause must be in a form that provides for periodic adjustments per kilowatt-hour of sales equal to the difference between the energy cost per kilowatt-hour of sales in the base period and in the current period in accordance with the following formula:

Adjustment Factor = (Fm - Sm) - (Fb - Sb)

For the purposes of this formula: "Fm" is the expense of fossil and nuclear fuel in the current period; "Fb" is the expense of fossil and nuclear fuel in the base period; "Sm" is the kilowatt-hour sales in the current period; and "Sb" is the kilowatt-hour sales in the base period.

The energy costs per kilowatt-hour for the current period shall be calculated from data covering actual costs from the most recent four-month period as follows: Energy costs for actual months 1, 2, 3, and 4 plus unrecovered (or less overrecovered) prior cumulative energy costs divided by kilowatt-hour sales for actual months 1, 2, 3, and 4 equals the energy cost adjustment for month 6.

4.Energy costs (F) are the cost of:

a.Fuel consumed in the utility's own plants, and the utility's share of fossil and nuclear fuel consumed in jointly owned or leased plants;

b.The actual identifiable fuel costs associated with energy purchased for reasons other than those identified in subdivision c;

c.The net energy cost of energy purchases, exclusive of capacity or demand charges, irrespective of the designation assigned to such transaction, when such energy is purchased:

(1)On an economic dispatch basis. Included therein may be such costs as the charges for economic energy purchases and the charges as a result of scheduled outage, all such kinds of energy being purchased by the buyer to substitute for its own higher cost energy;

(2)From a renewable energy source, including hydropower, wood, windpower, and biomass; and (3)From a qualifying facility as defined in 18 CFR part 292;

d.Less the cost of fuel recovered through intersystem sales including the fuel costs related to economy energy sales and other energy sold on an economic dispatch basis.

5.Sales (S) are all kilowatt-hours sold, excluding intersystem sales. Where for any reason, billed system sales cannot be coordinated with fuel costs for the billing period, sales may be equated to the sum of:

a.Generation;

b.Purchases;

c.Interchange-in; less

d.Energy associated with pumped storage operations; less

e.Intersystem sales referred to in subdivision d of subsection 4; less

f.Total system losses.

6.The adjustment factor developed according to this procedure must be modified to properly allow for losses (estimated if necessary) associated only with wholesale sales for resale.

7.The cost of fuel other than nuclear may include only those items listed in Account 151 of the Uniform System of Accounts for Public Utilities and Licensees. The cost of nuclear fuel is that in Account 518, to the extent that the cost has not already been included in the cost of other fuel.

8.If the current price of fuels is in litigation or otherwise being collected subject to refund, the utility shall advise the commission and shall keep a separate account of amounts paid that are subject to refund, and shall advise the commission of the final outcome.

9.Notice of change in the adjustment must be filed with the commission prior to billing. The notice must include:

a.Workpapers calculating the adjustment; and

b.To the extent possible, an explanation of market and other factors causing the change.

10.If a particular circumstance prevents the use of a standard or its use would result in an undue burden, the commission may for good cause shown, permit deviation from a standard.

11.The commission may review an automatic adjustment clause at any time to ensure the maximum economies in those operations and purchases which affect the rates to which the clause applies. The commission's review may include an evidentiary hearing. In making this review, the commission may examine and, if appropriate, cause to be audited, the practices of a utility relating to costs subject to an automatic adjustment clause, and may require any filings and reports that may be necessary to carry out the review, including volumes, prices, and contracts for all fuel and electric energy from all sources and a disclosure of any affiliation between the electric utility and the seller of fuel, electric energy, or other items to the utility.

12.Each utility shall cause an independent audit of its automatic adjustment clause to be performed annually. A copy of the auditor's report must be filed annually with the commission.

History

• History: Effective October 1, 1980; amended effective February 1, 1995.

Chapter 69-09-03 Pipeline Safety

N.D. Admin. Code 69-09-03-01 Safety

Pipeline facilities used for the intrastate distribution and transmission of natural and other gas, liquefied natural gas, or hazardous liquids shall be designed, constructed, and operated to meet the safety standards set forth in regulations of the United States department of transportation adopted in

section 69-09-03-02. The commission may require such proof of compliance as it deems necessary.

History

• History: Amended effective July 1, 1986; January 1, 1988; April 1, 2015.
• General Authority: NDCC 28-32-02, 49-02-04
• Law Implemented: NDCC 49-02-01.2, 49-02-04

N.D. Admin. Code 69-09-03-02 Adoption of regulations

The following parts of title 49, Code of Federal Regulations in effect as of September 6, 2023, are adopted by reference:

1.Part 190 -Pipeline Safety Programs and Rulemaking Procedures.

2.Part 191 -Transportation of Natural Gas and Other Gas by Pipeline, Annual Reports, Incident Reports, and Safety-Related Condition Reports.

3.Part 192 -Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards.

4.Part 193 -Liquefied Natural Gas Facilities: Federal Safety Standards.

5.Part 194 -Response Plans for Onshore Oil Pipelines.

6.Part 195 - Transportation of Hazardous Liquids by Pipeline.

7.Part 199 -Drug and Alcohol Testing.

Copies of these regulations may be obtained from:

Public Service Commission 600 East Boulevard Avenue, Dept. 408 Bismarck, ND 58505-0480

February 1, 1992; August 1, 1993; August 1, 1994; February 1, 1996; July 1, 1997; July 1, 1998;

September 1, 1999; August 1, 2000; January 1, 2002; November 1, 2003; May 1, 2005; July 1, 2006;

April 1, 2008; January 1, 2010; April 1, 2012; April 1, 2015; October 1, 2016; July 1, 2018; July 1, 2020;

January 1, 2021; October 1, 2022; April 1, 2024.

History

• History: Effective June 1, 1984; amended effective July 1, 1986; January 1, 1988; March 1, 1990;
• General Authority: NDCC 28-32-02
• Law Implemented: NDCC 49-02-01.2

Chapter 69-09-04 Uniform Sign Standards - Railroad

N.D. Admin. Code 69-09-04-01 Railroad warning signs - Specifications

Repealed effective November 1, 1987.

N.D. Admin. Code 69-09-04-02 Abandonment of railroad trackage - Applications

Determined repealed by the office of the legislative council under section 28-32-06 because the

authority for adoption of the rules was superseded by federal law. Repealed effective June 1, 2003.

N.D. Admin. Code 69-09-04-03 Change in agency service - Applications

Determined repealed by the office of the legislative council under section 28-32-06 because the

authority for adoption of the rules was superseded by federal law. Repealed effective June 1, 2003.

N.D. Admin. Code 69-09-04-04 Abandonment of railroad facilities - Exemption

Railroad companies need not seek commission approval to remove facilities that have not been used to provide direct service to shippers in the past three years. Companies, however, shall notify the commission and persons leasing adjacent railroad property of proposed removals at least thirty days prior to the removal date.

History

• History: Effective November 1, 1987.
• General Authority: NDCC 49-10.1-03
• Law Implemented: NDCC 49-10.1-03

N.D. Admin. Code 69-09-04-05 Acquisition of right of way - Notice of intent

Persons intending to acquire operating railroad right of way under North Dakota Century Code

section 49-09-10.2 shall notify the commission and provide it with the information specified by state law at least thirty days prior to the earlier of:

1.The proposed acquisition date; or

2.The filing of related notices with the interstate commerce commission.

History

• History: Effective November 1, 1987.
• General Authority: NDCC 49-09-11.7
• Law Implemented: NDCC 49-09-10.2

Chapter 69-09-05 Standards of Service - Telephone

N.D. Admin. Code 69-09-05-01 Lowest priced service alternatives

Upon request of a residential customer or prospective customer for service, the utility shall ask if such customer wishes to be informed of the lowest priced service alternatives available from the utility, and upon an affirmative response shall inform such customer of the lowest priced service alternatives available from the utility at the customer's location, giving full consideration to grades of service, equipment options, and installation charges incident thereto. The lowest priced service alternative includes service under the lifeline and link-up plans.

History

• History: Amended effective January 1, 2001.
• Law Implemented: NDCC 49-21-01.4, 49-21-01.7, 49-21-07

N.D. Admin. Code 69-09-05-02 Discontinuance of telecommunications services

A utility may not discontinue telecommunications services, except as provided in this section.

1.A utility may discontinue the essential services it provides:

a.If the customer is delinquent in payment for essential services, then essential services may be discontinued even though discontinuing the services results in the discontinuance of all telecommunications services.

b.If the customer is delinquent in payment for long-distance services rendered by a local exchange company or another company and billed by the local exchange company, but is not delinquent in payment for essential services rendered by the local exchange company, the local exchange company may discontinue the customer's local exchange services only at central offices lacking the technical ability to discontinue long-distance services while continuing to provide local exchange services.

2.A utility may discontinue nonessential services:

a.If the customer is delinquent in payment for nonessential services.

b.If the customer is delinquent in payment for long-distance telecommunications services rendered by another company and billed by the local exchange company, then the local exchange company may deny the customer all forms of access to the network of the telecommunications company to which the customer is delinquent in payment. However, if due to technical limitations, a local exchange company must also deny the customer all forms of access to the long-distance networks of all telecommunications companies, including its own, in order to deny the customer access to the network of the company to which the customer is delinquent, the local exchange company may do so.

3.A utility may discontinue service to a customer for failure to comply with regulations of the utility on file with the commission pertaining to installation and use of equipment, or for use of equipment which interferes with or adversely affects the service to other customers, provided the customer has first been notified and afforded reasonable opportunity to change or disconnect such equipment.

4.A utility may not discontinue service to a customer for failure of the customer to pay for merchandise purchased from the utility, to pay for a different class of service furnished by the utility, to pay for service rendered to a previous occupant of the premises, or to pay the bill of another customer as guarantor thereof.

5.A utility may not discontinue service to a customer for failure to pay for service until the utility first gives the customer notice of its intention to discontinue such service on account of delinquency. The notice must:

a.Be sent by first-class mail addressed to the billing name and address of the affected account.

b.Show the amount of the delinquency.

c.Include the telephone number of the public service commission.

d.Advise the customer of the customer's rights and remedies, including the customer's right to work out a satisfactory deferred installment agreement for delinquent accounts.

e.Inform the customer that service will be discontinued if the delinquent account is not paid within ten calendar days from the date of mailing or personal delivery of the notice, or if a satisfactory installment agreement is not made with the utility for payment of the delinquent bill. The utility may discontinue service without further notice if the customer fails to pay the delinquent account by the due date. 6.a.A deferred installment agreement for essential services may not be combined with a deferred installment agreement for any other services.

b.A utility may not discontinue essential services if the utility and the customer make a mutually agreed-upon deferred installment agreement for essential services. A utility may discontinue essential services without further notice if the customer fails to pay the delinquent account in accordance with the deferred installment agreement.

c.A utility may not discontinue nonessential services if the utility and the customer make a mutually agreed-upon deferred installment agreement for nonessential services. A utility may discontinue nonessential services without further notice if the customer fails to pay the delinquent account in accordance with the deferred installment agreement.

7.The customer may pay the delinquent account at any time prior to the actual discontinuance of service.

8.Whenever service has been discontinued for nonpayment of a bill, service must be resumed if the customer:

a.Pays the fee for resuming service established in the utility's rate schedules;

b.Makes a deposit under section 69-09-05-03 (if required by the company); and

c.Makes a satisfactory settlement for the delinquent bill and for the service rendered to the date the service was discontinued.

Interexchange carriers are not required to resume long-distance service if local service is not connected.

9.If the customer disputes the amount of a bill for service, the customer may, to prevent discontinuance for nonpayment, pay the disputed bill under protest to the utility. Alternatively, the customer may request a formal hearing pursuant to section 69-02-02-02 in which case the utility may not discontinue service for nonpayment of the disputed bill until a final decision has been issued by the commission. The utility shall immediately give the commission notice of the dispute and the commission may investigate the dispute. The utility shall refund to the customer any part of such payment made under protest found by the commission to be excessive.

10.The commission may order the discontinuance of services where a reseller or operator services provider violates commission rules. The commission will provide ten days' notice of a deficiency or violation and provide an opportunity for the noncomplying reseller or operator services provider to respond or correct the deficiency. A reseller or operator services provider disputing the alleged violation or discontinuance may request a formal hearing under section 69-02-02-02, in which case the discontinuance will be stayed until final decision by the commission. 11.a.Except for discontinuance due to delinquency, a competitive local exchange company may not discontinue service to a customer without first providing the customer with twenty days' written notice of the intent to discontinue service. The notice of intent to discontinue service shall inform the customer of its right to choose between local exchange companies, if more than one local exchange company is providing essential services.

b.A telecommunications company may not interfere with a competitive local exchange company's obligation to provide notice to a customer; provided that a telecommunications company may disconnect service to a competitive local exchange company under the terms of a resale or interconnection agreement so long as the interconnection agreement is consistent with law and rules.

12.Except in the case of discontinuance for nonpayment, if a telecommunications company providing interexchange service intends to discontinue service or is forced to discontinue service due to abandonment, acquisition, bankruptcy, or for other reasons, the company must provide reasonable advance notice of the discontinuance to each customer. The notice must inform the customer that the customer must choose another primary interexchange carrier or use an alternative service.

For the purpose of discontinuing or resuming telecommunications service:

1.If a customer's partial payment on outstanding charges for telecommunications services excluding payments on a deferred installment agreement is less than the outstanding charges for essential services and federal access charges, the customer is delinquent in payment for essential services.

2.If a customer's partial payment on outstanding charges for telecommunications services excluding payments on a deferred installment agreement is equal to or greater than the outstanding charges for essential services and federal access charges, the customer is not delinquent in payment for essential services.

History

• History: Effective April 1, 1985; amended effective January 1, 1993; May 1, 1996; July 1, 1997, amendments voided by the Administrative Rules Committee, effective August 16, 1997; January 1, 2001; July 1, 2006. 69-09-05-02.1. Determination of delinquency.
• History: Effective January 1, 1993.

N.D. Admin. Code 69-09-05-03 Deposits and guarantees

1.Each telephone utility subject to the public service commission's jurisdiction may require each applicant for service to make a deposit not to exceed two times the estimated amount of one month's average bill. The utility shall each year pay interest on such deposit at the rate paid by the Bank of North Dakota on a six-month certificate of deposit. Such rate will be determined as of the first business day of each year on a six-month certificate of deposit with the smallest deposit required. The interest may be paid to the depositor or may be deducted from the depositor's indebtedness to the utility for telephone service. The payment or deduction for interest must be made during each calendar year, or whenever a deposit is refunded or service discontinued. The utility may accept in lieu of a cash deposit a contract signed by a guarantor, satisfactory to the utility, whereby the payment of a specified sum not to exceed the required cash deposit is guaranteed. The term of such contract must be indeterminate, but it must automatically terminate when the customer gives notice of service discontinuance to the utility or a change in location covered by the guarantee agreement or thirty days after written request for termination is made to the utility by the guarantor. However, no agreement may be terminated without the customer having made satisfactory settlement for any balance which the customer owes the utility. Upon termination of a guarantee contract, a new contract or a cash deposit may be required by the utility.

2.An eligible telecommunications carrier may not collect a service deposit in order to initiate lifeline service, if the qualifying low-income consumer voluntarily elects toll blocking from the carrier, where available. If toll blocking is unavailable, the carrier may charge a service deposit.

History

• History: Effective April 1, 1985; amended effective August 1, 1994; January 1, 2001.

N.D. Admin. Code 69-09-05-04 Rules for resale of telecommunications services

1.Definitions.

a."Premise cable" means telecommunications cable or channels on the reseller's side of the point of connection to the local exchange company (demarcation point).

b."Prepayment" means payments made by customers of a reseller in advance of receiving service. Prepayment includes a deposit and any customer payment for telecommunications service in advance of receiving the full amount of service for which payment is made.

c."Resale" means the subscription to local or long-distance telecommunications services and facilities by one entity, and reoffered for profit or with markup to others with or without enhancements. Where reoffered service is part of a package, and the package is offered for profit or markup, it is resale.

d."Reseller" means a person reselling local or long-distance telecommunications services.

The definition does not include pay telephone providers, but does include a cellular and personal communication service provider who resells cellular or other wireless service.

e."Same continuous property" is contiguous real estate owned by the same individual, group of individuals, or other legal entity having title to the property. The property may be traversed by streets, ditches, or other similar manmade or natural terrain features provided that, but for terrain features, the property would be contiguous and provided that such terrain features are of a nature and dimension that it is reasonable to treat the property as contiguous.

f."Shared tenant service provider" means a person reselling telecommunications services to the tenants of a building complex on the same continuous property or to parties with a community of interest.

2.A reseller may not operate in North Dakota except in compliance with applicable laws and rules. A reseller shall:

a.Register with the commission, on a form provided by the commission, indicating the provision of local resale or long-distance resale services in the state of North Dakota.

b.If a reseller requires prepayment for service, it shall:

(1)Submit a performance bond in an amount specified by the commission; or (2)Establish an escrow account in a North Dakota bank containing an amount equal to the prepayments collected at any given time, and file monthly reports showing escrow account activities and call completion data.

(3)Under subsection 7 of North Dakota Century Code section 49-03.7-09 the bonding requirement does not apply to a facility-based company providing commercial mobile radio service, as defined in title 47, Code of Federal Regulations, part 20,

section 20.3.

(4)The requirements of paragraphs 1 and 2 are subject to a twenty-five thousand dollar minimum for resellers of local service other than by means of a prepaid calling card.

The required amount of a performance bond is the product of the estimated level of customers after three years of operation, times the amount of required customer prepayments, or twenty-five thousand dollars, whichever is greater. The required amount of an escrow account is an amount equal to the prepayments at any given time but no less than twenty-five thousand dollars.

(5)The requirements of paragraphs 1 and 2 are subject to a two thousand five hundred dollar minimum for resellers of any service other than the local service subject to paragraph 4. The amount of a performance bond is the product of the estimated level of customers after three years of operation, times the amount of required customer prepayments, or two thousand five hundred dollars, whichever is greater.

The amount of an escrow account is an amount equal to the prepayments, including prepaid calling cards, at any given time.

3.A reseller may not be identified as an optional intrastate interexchange carrier unless it is registered with the commission.

4.Except for residents of dormitories or residence halls of schools, colleges, or universities, the end user has the unrestricted right to choose service from the incumbent local exchange company.

5.A shared tenant service provider shall allow the tenant to use the shared tenant service provider's premise cable and wire in the event an end user wants to receive service from the local exchange company.

6.The reseller is responsible for the charges incurred for telecommunications services to which it subscribes for serving its end users.

7.A reseller is subject to revocation of its authority and the penalties provided in North Dakota Century Code chapters 49-03.1 and 49-07 for violation of any applicable law or rule.

1.A local exchange carrier shall not identify a telecommunications company as an optional intrastate interexchange carrier unless the telecommunications company provides the local exchange company with evidence of an effective registration authorizing the provision of intrastate interexchange service.

2.A telecommunications company shall immediately notify in writing all local exchange companies for which it has requested identification as an optional intrastate interexchange carrier if the telecommunications company's authority to provide interexchange service is revoked or abandoned. A local exchange company shall cease to identify a telecommunications company as an optional intrastate interexchange carrier upon receipt of a written notice that the telecommunications company's authority to provide interexchange service has been revoked or abandoned.

A telecommunications company may not change a customer's local or long-distance carrier without authorization from the customer.

History

• History: Effective March 1, 1989; amended effective August 1, 1991; December 1, 1993; February 1, 1995; July 1, 1997; January 1, 2001; July 1, 2006.
• Law Implemented: NDCC 49-03.1-01, 49-03.1-03, 49-21, 49-21-01.7, 49-21-07 69-09-05-04.1. Identification of intraLATA interexchange carriers.
• History: Effective February 1, 1995; amended effective January 1, 2001; July 1, 2006.
• Law Implemented: NDCC 49-03.1-01, 49-03.1-03, 49-21 69-09-05-04.2. Unauthorized service changes.
• History: Effective July 1, 1997.
• Law Implemented: NDCC 49-21, 49-21-01.7, 49-21-02.4, 49-21-07

N.D. Admin. Code 69-09-05-05 Rules for the provision of operator services

1.Definitions.

a."End user" means the person to whom operator service is provided.

b."Operator service" means service provided to assist in the completion or billing of telephone calls through the use of a live operator or automated equipment. "Operator service" does not include completion of calls through an 800 number or an access code when billed to an account previously established with the carrier by the end user, or the automated operator services provided by pay telephone sets with built-in automated operator messages.

c."Operator service provider" means the person providing operator service.

2.Operator service providers shall:

a.Register with the commission authorizing the provision of operator services in the state of North Dakota.

b.Provide written material for use in disclosing to the end user the name and toll-free telephone number of the operator service provider. This material must be provided to all coin telephone operators, motels, hospitals, and any other locations where end users may use telephone service not billable to their home or business telephones without operator service.

c.Require operators to clearly identify the operator service provider to all end users and when requested, provide rate information.

d.Provide emergency call service that is equal to that provided by the local exchange telephone company and, if unable to meet this requirement, provide emergency call service by immediate transfer of such calls to the local exchange company.

e.For billing purposes, itemize, identify, and rate calls from the point of origination to the point of termination. No call may be transferred to another carrier by an operator service provider which cannot or will not complete the call, unless the call can be billed in accordance with this subsection.

f.Not charge for incompleted calls.

g.Disclose their names on bills which include charges for services they provided.

July 1, 2006.

History

• History: Effective March 1, 1989; amended effective August 1, 1991; May 1, 1996; January 1, 2001;
• Law Implemented: NDCC 49-03.1-01, 49-03.1-03, 49-21, 49-21-01.7, 49-21-07

N.D. Admin. Code 69-09-05-06 Rules for pay telephones

Repealed effective August 1, 1994.

N.D. Admin. Code 69-09-05-07 Customer trouble reports

When a customer's service is found to be out of order or a customer reports trouble, the local exchange telecommunications company shall test its facilities to determine if the problem is with the local exchange company's facilities. If it is, the local exchange company shall correct the trouble promptly. There may be no charge to the customer to test to determine if the problem is on the local exchange company's facilities or to correct a problem on the local exchange company's facilities. A local exchange company shall inform a customer in advance what charges will be assessed to identify or correct a problem located on the customer's facilities.

History

• History: Effective August 1, 1991; amended effective January 1, 2001.
• General Authority: NDCC 28-32-02

N.D. Admin. Code 69-09-05-08 Adoption of regulations

The following parts of title 47, Code of Federal Regulations in effect as of July 17, 1997, are adopted by reference:

Part 54 - Universal Service, Subpart F - Universal Service Support for Schools and Libraries.

Copies of these regulations may be obtained from:

Public Service Commission State Capitol Bismarck, North Dakota 58505-0480

History

• History: Effective March 1, 1998.
• General Authority: NDCC 28-32-02, 49-02-01
• Law Implemented: NDCC 49-21

N.D. Admin. Code 69-09-05-09 911 and E-911 service

Each competitive local exchange company shall provide 911 or E-911 service that is comparable to the 911 or E-911 service provided by the incumbent local exchange company operating in each respective service area in which the competitive local exchange company offers service.

History

• Law Implemented: NDCC 49-21, 49-21-01.7, 49-21-07, 49-21-24

N.D. Admin. Code 69-09-05-10 Registration - Procedure

1.A reseller or competitive facilities-based provider desiring authority to provide service in North Dakota shall register on a form provided by the commission. The registration shall include identification of the applicant's authority to do business in North Dakota.

2.A reseller shall follow the procedure set forth in section 69-09-05-04.

3.When a registered company intends to assign its authority to provide telecommunications service in North Dakota to another entity, the assignee must first register with the commission.

4.A registered company may voluntarily, without commission approval, surrender its authority by notifying the commission in writing and updating its registration to reflect this surrender.

5.A competitive local exchange company intending to surrender its authority to provide local exchange service must provide twenty days' prior written notice to the company's customers.

History

• History: Effective January 1, 2001; amended effective July 1, 2006.
• Law Implemented: NDCC 49-03.1-01, 49-03.1-03, 49-21

N.D. Admin. Code 69-09-05-11 Certificate of public convenience and necessity for incumbent local telecommunications company - Procedure

1.An applicant for a certificate of public convenience and necessity as an incumbent local exchange company shall file an application with the commission which includes evidence of the applicant's authority to do business in North Dakota, conforms to the commission's rules of practice and procedure under article 69-02, and which identifies:

a.The type of service the applicant intends to provide.

b.The service area or areas in which the applicant intends to provide service.

c.How the applicant meets the issues to be considered in the application.

2.An applicant for a certificate of public convenience and necessity must also file consolidated financial statements for the most recent year available, including:

a.A balance sheet of the form and style usually followed in the industry.

b.An income statement of the form and style usually followed in the industry.

c.If available, an independent accountant's financial opinion.

d.Any other information requested by the commission.

3.In order to implement North Dakota Century Code chapter 49-03.1 consistent with the Telecommunications Act of 1996, issues to be considered in an application for a certificate of public convenience and necessity for a facilities-based provider of telecommunications services are:

a.Fitness and ability of the applicant to provide service.

b.Adequacy of the proposed service.

c.The technical, financial, and managerial ability of the applicant to provide service.

4.If the application is to be decided on a notice of opportunity for hearing, the applicant shall file affidavits sufficient to meet the applicant's burden of proof on the issues.

5.When the holder of a certificate of public convenience and necessity intends to assign the

authority to provide telecommunications service in North Dakota to another entity, the assignee must first obtain a certificate of public convenience and necessity from the commission.

6.Abandonment of a certificate of public convenience and necessity for an incumbent local exchange company requires prior commission approval.

History

• History: Effective January 1, 2001; amended effective July 1, 2006.
• Law Implemented: NDCC 49-03.1-01, 49-03.1-03, 49-21, 49-21-01.7(7)

N.D. Admin. Code 69-09-05-12 Eligible telecommunications carrier applications and advertising

1.A telecommunications company that desires designation as an eligible telecommunications carrier as that term is defined in the Telecommunications Act of 1996 shall make application for such designation with the commission.

2.An application for designation as an eligible telecommunications carrier must specifically identify:

a.The proposed designated service area. Applicants that will not be classified as the incumbent local exchange carrier shall identify the incumbent local exchange carrier study areas that are located, in whole or in part, in the proposed designated service area;

b.How the applicant meets the requirements for designation as an eligible telecommunications carrier;

c.Whether the applicant requires a waiver of any eligible telecommunications carrier requirement; and

d.If a waiver is required, the specific reasons for the waiver and the length of time for which the waiver is required.

3.An applicant for designation as an eligible telecommunications carrier shall:

a.Commit to provide service throughout its proposed designated service area to all customers making a reasonable request for service. Each applicant shall certify that it will:

(1)Provide service on a timely basis to requesting customers within the applicant's proposed designated service area where the applicant's network already passes the potential customer's premises; and (2)Provide service within a reasonable period of time, if the potential customer is within the applicant's proposed designated service area but outside its existing network coverage, if service can be provided at reasonable cost by:

(a)Modifying or replacing the requesting customer's equipment;

(b)Deploying a roof-mounted antenna or other equipment;

(c)Adjusting the nearest cell tower;

(d)Adjusting network or customer facilities;

(e)Reselling services from another carrier's facilities to provide service; or (f)Employing, leasing, or constructing an additional cell site, cell extender, repeater, or other similar equipment.

b.Submit a report estimating the amount of federal high-cost universal service support the applicant expects to receive in the first year following designation as an eligible telecommunications carrier and describing how that support is projected to be used for the provision, maintenance, or upgrading of the carrier's facilities and services pursuant to section 254 of the Telecommunications Act of 1996. The report must identify specific construction, maintenance, or upgrade projects; describe how service will be improved by each project; and provide the projected start date and completion date for each improvement, the estimated amount of investment for each of the specific geographic area where each improvement will be made, and the estimated population that will be served by each improvement. For applicants that will be classified as the incumbent local exchange carrier, the information required shall be submitted at the study area level. For other applicants, the information shall be submitted at the incumbent local exchange carrier study area level. If a study area or designated service area includes geographic areas in more than one state, the information shall also be submitted at the North Dakota level.

c.Certify that it is able to remain functional in emergency situations, including a certification that it has a reasonable amount of backup power to ensure functionality without an external power source, is able to reroute traffic around damaged facilities, and is capable of managing traffic spikes resulting from emergency situations.

d.Certify that it will satisfy applicable consumer protection and service quality standards. A commitment by wireless applicants to comply with the cellular telecommunications and internet association's consumer code for wireless service will satisfy this requirement.

Other commitments will be considered on a case-by-case basis.

e.Demonstrate that it offers a local usage plan comparable to the one offered by the incumbent LEC in the proposed designated service area.

f.Certify that the carrier acknowledges that the commission may require it to provide equal access to long-distance carriers in the event that no other eligible telecommunications carrier is providing equal access within the proposed designated service area. Wireless carriers must certify that the carrier acknowledges that the federal communications commission may require it to provide equal access to long-distance carriers in the event no other eligible telecommunications carrier is providing equal access within the proposed designated service area.

4.Any common carrier that has been designated as an eligible telecommunications carrier or that has submitted its application for designation before July 1, 2007, must submit the information required by subsection 3 no later than August 1, 2007, as part of its annual reporting requirements.

5.Prior to designating an eligible telecommunications carrier, the commission shall determine that such designation is in the public interest. In doing so, the commission shall consider the benefits of increased consumer choice and the unique advantages and disadvantages of the applicant's service offering. When an eligible telecommunications carrier applicant seeks designation below the study area level of a rural telephone company, the commission shall also conduct an analysis that compares the population density of each wire center in which the eligible telecommunications carrier applicant seeks designation against that of the wire centers in the study area in which the eligible telecommunications carrier applicant does not seek designation. In its analysis, the commission shall consider other factors, such as disaggregation of support by the incumbent local exchange carrier.

6.Eligible telecommunications carrier advertising. The following forms of advertising of the availability of universal service are required of an eligible telecommunications carrier:

a.A full description of available services in the eligible telecommunications carrier's official telephone directory, including the process to be used by customers to qualify for lifeline and link-up service.

b.Advertising of the availability of universal services in media of general circulation in each eligible telecommunications carrier's designated service areas. Availability may be advertised in newspapers, company newsletters, company or civic internet sites, bill stuffers, direct mailings, or other means intended to convey availability throughout the service area.

Eligible telecommunications carriers shall file with the commission on or before August first of each year, beginning in 2007:

1.A report describing the amount of high-cost universal service support the eligible telecommunications carrier received in the prior calendar year and how that support was used for the provision, maintenance, or upgrading of the carrier's facilities and services. The report must also explain any changes from reports that have been previously provided to the commission. The report must include an estimate of the amount of federal high-cost universal service support the carrier anticipates receiving in the following calendar year and describe how that support is projected to be used for the provision, maintenance, or upgrading of the carrier's facilities and services pursuant to section 254 of the Telecommunications Act of 1996.

The prior calendar year and following calendar year reports must identify specific construction or upgrade projects, describe how service will be improved by each project, and provide the start date and completion date for each improvement, the amount of investment for each improvement, the specific geographic area where each improvement will be made, and the estimated population that will be served by each improvement. For eligible telecommunications carriers that are classified as the incumbent local exchange carrier, the information required must be submitted at the study area level. For other eligible telecommunications carriers, the information must be submitted at the incumbent local exchange carrier study area level. If a study area or designated service area includes geographic areas in more than one state, the information must also be submitted at the North Dakota level.

2.Detailed information on any outage, as that term is defined in 47 C.F.R. section 4.5, of at least thirty minutes in duration for each designated service area for any facilities it owns, operates, leases, or otherwise utilizes that potentially affect at least ten percent of the end users served in a designated service area, or a 911 special facility, as defined in 47 C.F.R. section 4.5(e).

Specifically, the eligible telecommunications carrier's annual report must include information detailing:

a.The date and time of onset of the outage;

b.A brief description of the outage and its resolution;

c.The particular services affected;

d.The geographic areas affected by the outage;

e.Steps taken to prevent a similar situation in the future; and

f.The number of customers affected.

Eligible telecommunications carriers may file a copy of federal communications commission outage reports that include the information required by this subsection to satisfy this requirement.

3.The number of requests for service from potential customers within the designated service area that were unfulfilled during the past year. The carrier shall also detail how it attempted to provide service to those potential customers.

4.The number of complaints per one thousand handsets or lines.

5.Certification that it is complying with applicable service quality standards and consumer protection rules.

6.Certification that the carrier is able to function in emergency situations.

7.Certification that the carrier is offering a local usage plan comparable to that offered by the incumbent LEC in the relevant designated service area.

8.Certification that the carrier acknowledges that the commission may require it to provide equal access to long-distance carriers in the event that no other eligible telecommunications carrier is providing equal access within the designated service area. Wireless carriers must certify that the carrier acknowledges that the federal communications commission may require it to provide equal access to long-distance carriers in the event no other eligible telecommunications carrier is providing equal access within the designated service area.

History

• History: Effective January 1, 2001; amended effective July 1, 2007.
• Law Implemented: NDCC 49-21, 49-21-01.7, 49-21-07 69-09-05-12.1. Annual reporting requirements for designated eligible telecommunications carriers.
• History: Effective July 1, 2007.
• Law Implemented: NDCC 49-21, 49-21-01.7, 49-21-07

N.D. Admin. Code 69-09-05-13 Essential service provider bills

A provider of essential service, on any bill issued for the provision of essential services, shall:

1.Clearly disclose its name, business address, and a toll-free customer inquiry telephone number. The company name and business address must also be made available via the toll-free customer inquiry number;

2.Clearly and separately identify the essential services for which the bill is issued;

3.Clearly identify all taxes, fees, and surcharges associated with the essential services for which the bill is issued; and

4.Disclose that the provision of essential services may not be discontinued by the provider for nonpayment of charges for nonessential services or use other language that complies with federal billing rules.

History

• General Authority: NDCC 28-32-02, 49-02-01.1, 49-21-01.7

N.D. Admin. Code 69-09-05-14 Procedure for filing negotiated interconnection agreements

Carrier-to-carrier interconnection agreements adopted by negotiation must be filed for commission approval under 47 U.S.C. section 252(e), following the procedure set out in this section.

1.The requirements of this section apply to interconnection agreements negotiated under 47 U.S.C. section 251; assignments, assumptions or transfers of interconnection agreements; amendments to interconnection agreements; and agreements for Qwest platform plus (QPP) services. The requirements of this section do not apply to commercial line sharing agreements.

2.Each filing must include a completed cover sheet in a form prescribed by the commission.

3.Filed interconnection agreements will be listed on the commission internet site for comment by interested parties. The internet listing will include the date each agreement was filed and links to the agreement itself.

4.The commission will accept written comments on a listed agreement for sixty days from the date filed.

5.Absent commission action within ninety days of filing to disapprove an agreement, or portion thereof, the agreement will be deemed approved under 47 U.S.C. section 252(e)(4).

6.Any assignment, assumption, or transfer of an approved interconnection agreement requires notification to be filed with the commission within thirty days after the assignment, assumption, or transfer occurs.

7.Any amendment to an interconnection agreement requires a new filing with a new ninety-day review and comment period.

History

• History: Effective July 1, 2006.

Chapter 69-09-05.1 Accounting Practices

N.D. Admin. Code 69-09-05.1 Accounting Practices

CHAPTER 69-09-05.1

ACCOUNTING PRACTICES

Section 69-09-05.1-01Accounting Practices - Rate-Regulated Telecommunications Companies 69-09-05.1-02Accounting Practices - Rate-Regulated Gas Companies 69-09-05.1-03Accounting Practices - Rate-Regulated Electric Companies 69-09-05.1-04Accounting Practices - Allowance for Funds Used During Construction for Rate-Regulated Gas Companies 69-09-05.1-05Accounting Practices - Allowance for Funds Used During Construction for Rate-Regulated Electric Companies 69-09-05.1-01. Accounting practices - Rate-regulated telecommunications companies.

The system of accounts used by all North Dakota telecommunications companies subject to rate

regulation by the commission shall conform to the uniform system of accounts set forth in title 47, Code of Federal Regulations, part 32, prescribed by the federal communications commission by order of May 1, 1986, which is adopted by reference.

History: Effective March 1, 1988; amended effective August 1, 1994. 69-09-05.1-02. Accounting practices - Rate-regulated gas companies.

The system of accounts used by all North Dakota natural gas distribution companies subject to rate

regulation by the commission must conform to the uniform system of accounts set forth in title 18, Code of Federal Regulations, part 201, prescribed by the federal energy regulatory commission. 69-09-05.1-03. Accounting practices - Rate-regulated electric companies.

The system of accounts used by all North Dakota electric companies subject to rate regulation by the commission must conform to the uniform system of accounts set forth in title 18, Code of Federal Regulations, part 101, prescribed by the federal energy regulatory commission. 69-09-05.1-04. Accounting practices - Allowance for funds used during construction for rate-regulated gas companies.

A North Dakota natural gas distribution company subject to rate regulation by the commission may not capitalize allowance for funds used during construction (AFUDC) as prescribed in title 18, Code of Federal Regulations, part 201, for projects costing less than ten thousand dollars and taking less than thirty days to complete. 69-09-05.1-05. Accounting practices - Allowance for funds used during construction for rate-regulated electric companies.

A North Dakota electric company subject to rate regulation by the commission may not capitalize allowance for funds used during construction (AFUDC) as prescribed in title 18, Code of Federal Regulations, part 101, for projects costing less than ten thousand dollars and taking less than thirty days to complete.

Chapter 69-09-06 Prohibition on Sale and Direct Industrial Use of Natural Gas for Outdoor Lighting [Repealed]

N.D. Admin. Code 69-09-06 Prohibition on Sale and Direct Industrial Use of Natural Gas for Outdoor Lighting [Repealed]

CHAPTER 69-09-06

PROHIBITION ON SALE AND DIRECT INDUSTRIAL USE OF NATURAL GAS FOR

OUTDOOR LIGHTING [Repealed effective January 1, 1988]

Chapter 69-09-07 Small Power Production and Cogeneration

N.D. Admin. Code 69-09-07-01 Definitions

As used throughout this chapter, except where otherwise indicated:

1."Avoided costs" means the incremental costs to an electric utility of electric energy or capacity or both which, but for the purchase from the qualifying facility or qualifying facilities, such utility would generate itself or purchase from another source.

2."Backup power" means electric energy or capacity supplied by an electric utility to replace energy ordinarily generated by a facility's own generation equipment during an unscheduled outage of the facility.

3."Biomass" means any organic material not derived from fossil fuels.

4."Bottoming-cycle cogeneration facility" means a cogeneration facility in which the energy input to the system is first applied to a useful thermal energy process, and the reject heat emerging from the process is then used for power production.

5."Cogeneration facility" means equipment used to produce electric energy and forms of useful thermal energy, such as heat or steam, used for industrial, commercial, heating, or cooling purposes, through the sequential use of energy.

6."Commission" means the public service commission, or such other department, bureau, or commission as may lawfully succeed to the powers and duties of that commission.

7."Electric utility" means an "electric public utility" as defined in subsection 1 of North Dakota Century Code section 49-03-01.5.

8."Interconnection costs" means the reasonable costs of connection, switching, metering, transmission, distribution, safety provisions and administrative costs incurred by the electric utility directly related to the installation and maintenance of the physical facilities necessary to permit interconnected operations with a qualifying facility, to the extent such costs are in excess of the corresponding costs which the electric utility would have incurred if it had not engaged in interconnected operations, but instead generated an equivalent amount of electric energy itself or purchased an equivalent amount of electric energy or capacity from other sources. Interconnection costs do not include any costs included in the calculation of avoided costs.

9."Interruptible power" means electric energy or capacity supplied by an electric utility subject to interruption by the electric utility under specified conditions.

10."Maintenance power" means electric energy or capacity supplied by an electric utility during the scheduled outages of the qualifying facility.

11."Natural gas" means either natural gas unmixed, or any mixture of natural gas and artificial gas.

12."Oil" means crude oil, residual fuel oil, natural gas liquids, or any refined petroleum products.

13."Primary energy source" means the fuel or fuels used for the generation of electric energy, except that such term does not include the minimum amounts of fuel required for ignition, startup, testing, flame stabilization, and control uses, and the minimum amounts of fuel required to alleviate or prevent unanticipated equipment outages, and emergencies, directly affecting the public health, safety or welfare, which would result from electric power outages.

14."Purchase" means the purchase of electric energy or capacity or both from a qualifying facility by an electric utility.

15."Qualifying cogeneration facility" means a cogeneration facility that is a qualifying facility under subsection 2 of section 69-09-07-03.

16."Qualifying cogenerator" means the owner or operation of a qualifying cogeneration facility.

17."Qualifying facility" means a cogeneration facility or a small power production facility which is a qualifying facility under section 69-09-07-03.

18."Qualifying small power producer" means the owner or operator of a qualifying small power production facility.

19."Qualifying small power production facility" means a small power production facility that is a qualifying facility under subsection 1 of section 69-09-07-03.

20."Rate" means any price, rate, charge, or classification made, demanded, observed, or received with respect to the sale or purchase of electric energy or capacity, or any rule,

regulation, or practice respecting any such rate, charge, or classification, and any contract pertaining to the sale or purchase of electric energy or capacity.

21."Sale" means the sale of electric energy or capacity or both by an electric utility to a qualifying facility.

22."Small power production facility" means a facility which produces electric energy solely by the use, as a primary energy source, of biomass, waste, renewable resources, or any combination thereof, and has a power production capacity which, together with any other facilities located at the same site, is not greater than eighty megawatts.

23."Supplementary firing" means an energy input to the cogeneration facility used only in the thermal process of a topping-cycle cogeneration facility, or only in the electric generating process of a bottoming-cycle cogeneration facility.

24."Supplementary power" means electric energy or capacity supplied by an electric utility, regularly used by a qualifying facility in addition to that which the facility generates itself.

25."System emergency" means a condition on a utility's system which is likely to result in imminent significant disruption of service to customers or is imminently likely to endanger life or property.

26."Topping-cycle cogeneration facility" means a cogeneration facility in which the energy input to the facility is first used to produce useful power output, and the reject heat from power production is then used to provide useful thermal energy.

27."Total energy input" means the total energy of all forms supplied from external sources other than supplementary firings to the facilities.

28."Total energy output" of a topping-cycle cogeneration facility is the sum of the useful power output and useful thermal energy output.

29."Useful power output" of a cogeneration facility means the electric or mechanical energy made available for use, exclusive of any such energy used in the power production process.

30."Useful thermal energy output" of a topping-cycle cogeneration facility means the thermal energy made available for use in any industrial or commercial process, or used in any heating or cooling application.

31."Waste" means byproduct materials other than biomass.

N.D. Admin. Code 69-09-07-02 Scope - Applicability - Negotiated rates or terms

1.Applicability. This chapter applies to the regulation of sales and purchases between qualifying facilities and electric utilities.

2.Negotiated rates or terms. Nothing in this chapter:

a.Limits the authority of any electric utility or any qualifying facility to agree to a rate for any purchase, or terms or conditions relating to any purchase, which differ from the rate or terms or conditions which would otherwise be required by this chapter; or

b.Affects the validity of any contract entered into between a qualifying facility and an electric utility for any purchase.

N.D. Admin. Code 69-09-07-03 Qualifying facilities - General requirements for qualification

1.Small power production facilities. A small power production facility is a qualifying facility if it:

a.Meets the maximum size criteria specified in subsection 1 of section 69-09-07-04;

b.Meets the fuel use criteria specified in subsection 2 of section 69-09-07-04; and

c.Meets the ownership criteria specified in section 69-09-07-06.

2.Cogeneration facilities. Unless excluded under subsection 3, a cogeneration facility is a qualifying facility if it:

a.Meets any applicable operating and efficiency standards specified in subsections 1 and 2 of section 69-09-07-05; and

b.Meets the ownership criteria specified in section 69-09-07-06.

3.Any cogeneration facility which is a new diesel cogeneration facility may not be a qualifying facility. A new diesel cogeneration facility is a cogeneration facility:

a.Which derives its useful power output from a diesel engine; and

b.The installation of which began on or after March 13, 1980.

4.Any cogeneration facility which is a new dual-fuel cogeneration facility which seeks to obtain qualifying status must follow the procedures set forth in subsection 2 of section 69-09-07-06. A new dual-fuel cogeneration facility is a cogeneration facility:

a.Which derives its useful power output from an internal combustion piston engine capable of changing automatically between gas and oil operation; and

b.The installation of which began on or after May 15, 1980.

N.D. Admin. Code 69-09-07-04 Criteria for qualifying small power production facilities

1.Size of the facility.

a.Maximum size. The power production capacity of the facility for which qualification is sought, together with the capacity of any other facilities which use the same energy resource, are owned by the same person, and are located at the same site, may not exceed eighty megawatts.

b.Method of calculation.

(1)For purposes of this subsection, facilities are considered to be located at the same site as the facility for which qualification is sought if they are located within one mile [1.61 kilometers] of the facility for which qualification is sought and, for hydroelectric facilities, if they use water from the same impoundment for power generation.

(2)For purposes of making the determination in paragraph 1, the distance between facilities shall be measured from the electric generating equipment of a facility.

c.Waiver. The commission may modify the application of subdivision b for good cause.

2.Fuel use.

a.The primary energy source of the facility must be biomass, waste, renewable resources, or any combination thereof, and more than seventy-five percent of the total energy input must be from these sources. Any primary energy source which, on the basis of its energy content, is fifty percent or more biomass shall be considered biomass.

b.Use of oil, natural gas, and coal by a facility may not, in the aggregate, exceed twenty-five percent of the total energy input of the facility during any calendar year period. Energy input in the case of energy in the form of natural gas or oil is to be measured by the lower heating value of the natural gas or oil.

N.D. Admin. Code 69-09-07-05 Criteria for qualifying cogeneration facilities

1.Operating standard for topping-cycle facilities. For any topping-cycle cogeneration facility, the useful thermal energy output of the facility must, during any calendar year period, be no less than five percent of the total energy output.

2.Efficiency standard for topping-cycle facilities.

a.For any topping-cycle cogeneration facility for which any of the energy input is natural gas or oil, and the installation of which began on or after March 13, 1980, the useful power output of the facility plus one-half the useful thermal energy output, during any calendar year period, must:

(1)Subject to paragraph 2, be no less than forty-two and one-half percent of the total energy output of natural gas and oil to the facility; or (2)If the useful thermal energy output is less than fifteen percent of the total energy output of the facility, be no less than forty-five percent of the total energy input of natural gas and oil to the facility.

b.For any topping-cycle cogeneration facility not subject to subdivision a, there is no efficiency standard.

3.Efficiency standard for bottoming-cycle facilities.

a.For any bottoming-cycle cogeneration facility for which any of the energy input as supplementary firing is natural gas or oil, and the installation of which began on or after March 13, 1980, the useful power output of the facility must, during any calendar year period, be no less than forty-five percent of the energy input of natural gas and oil for supplementary firing.

b.For any bottoming-cycle cogeneration facility not covered by subdivision a, there is no efficiency standard.

4.Waiver. The commission may waive any of the requirements of this section upon a showing that the facility will produce significant energy savings.

N.D. Admin. Code 69-09-07-06 Ownership criteria

1.General rule. A cogeneration facility or small power production facility may not be owned by a person primarily engaged in the generation or sale of electric power, other than electric power solely from cogeneration facilities or small power production facilities.

2.Ownership test. For purposes of this section, a cogeneration or small power production facility shall be considered to be owned by a person primarily engaged in the generation or sale of electric power, if more than fifty percent of the equity interest in the facility is held by an electric utility or utilities, or by a public utility holding company, or companies, or any combination thereof. If a wholly or partially owned subsidiary of an electric utility or public utility holding company has an ownership interest in a facility, the subsidiary's ownership interest shall be considered as ownership by an electric utility or public utility holding company.

N.D. Admin. Code 69-09-07-07 Procedures for obtaining qualifying status

1.Qualification. A small power production facility or cogeneration facility which meets the criteria for qualification set forth in section 69-09-07-03 is a qualifying facility. The owner or operator of any facility qualifying under this subsection shall furnish notice to the commission providing the information set forth in paragraphs 1 through 4 of subdivision b of subsection 2.

2.Optional procedure.

a.Application for commission certification. Pursuant to the provisions of this subsection, the owner or operator of the facility may file with the commission an application for commission certification that the facility is a qualifying facility.

b.General contents of application. The application shall contain the following information:

(1)The name and address of the applicant and the location of the facility;

(2)A brief description of the facility, including a statement indicating whether such facility is a small power production facility or a cogeneration facility;

(3)The primary energy source used or to be used by the facility;

(4)The power production capacity of the facility; and (5)The percentage of ownership by any electric utility or by any public utility holding company, or by any person owned by either.

c.Additional application requirements for small power production facilities. An application by a small power producer for commission certification shall contain the following additional information:

(1)The location of the facility in relation to any other small power production facilities located within one mile [1.61 kilometers] of the facility, owned by the applicant which use the same energy source; and (2)Information identifying any planned usage of natural gas, oil, or coal.

d.Additional application requirements for cogeneration facilities. An application by a cogenerator for commission certification shall contain the following additional information:

(1)A description of the cogeneration system, including whether the facility is a topping or bottoming cycle and sufficient information to determine that any applicable requirements under section 69-09-07-05 will be met; and (2)The date installation of the facility began or will begin.

e.Commission action. Within ninety days of the filing of a complete application, the commission shall issue an order granting or denying the application, tolling the time for issuance of an order, or setting the matter for hearing. Any order denying certification shall identify the specific requirements which are not met. If no order is issued within ninety days of the filing of a complete application, the application shall be deemed to have been granted.

3.Notice requirements for facilities of five hundred kilowatts or more. An electric utility is not required to purchase electric energy from a facility with a design capacity of five hundred kilowatts or more until ninety days after the facility notifies the utility that it is a qualifying facility, or ninety days after the facility has applied to the commission under subsection 2.

4.Revocation of qualifying status.

a.The commission may revoke the qualifying status of a qualifying facility which has been certified under this section if such facility fails to comply with any of the statements contained in its application for commission certification.

b.Prior to undertaking any substantial alteration or modification of a qualifying facility which has been certified under this section, a small power producer or cogenerator may apply to the commission for a determination that the proposed alteration or modification will not result in a revocation of qualifying status.

N.D. Admin. Code 69-09-07-08 Electric utility obligations

1.Obligation to purchase from qualifying facilities. Each electric utility shall purchase, in accordance with section 69-09-07-09, any energy and capacity which is made available from a qualifying facility:

a.Directly to the electric utility; or

b.Indirectly to the electric utility in accordance with subsection 4.

2.Obligation to sell to qualifying facilities. Each electric utility shall sell to any qualifying facility, in accordance with section 69-09-07-10, any energy and capacity requested by the qualifying facility.

3.Obligation to interconnect. An electric utility shall make such interconnections with any qualifying facility as may be necessary to accomplish purchases or sales under this chapter.

The obligation to pay for any interconnection costs shall be determined in accordance with

section 69-09-07-11.

4.Transmission to other electric utilities. If a qualifying facility agrees, an electric utility which would otherwise be obligated to purchase energy or capacity from such qualifying facility may transmit the energy or capacity to any other electric utility. Any electric utility to which such energy or capacity is transmitted shall purchase such energy or capacity under this chapter as if the qualifying facility were supplying energy or capacity directly to such electric utility. The rate for purchase by the electric utility to which such energy is transmitted shall be adjusted up or down to reflect line losses pursuant to subdivision d of subsection 6 of section 69-09-07-09.

5.Parallel operation. Each electric utility shall offer to operate in parallel with a qualifying facility.

N.D. Admin. Code 69-09-07-09 Rates for purchases

1.Rates for purchases must:

a.Be just and reasonable to the electric consumer of the electric utility and in the public interest; and

b.Not discriminate against qualifying cogeneration and small power production facilities.

2.Relationship to avoided costs.

a.For purposes of this subsection, "new capacity" means any purchase from capacity of a qualifying facility, construction of which began on or after November 9, 1978.

b.Subject to subdivision c of this subsection and subdivision a of subsection 3, a rate for purchases satisfies the requirements of subsection 1 if the rate equals the avoided costs determined after consideration of the factors set forth in subsections 5 and 6.

c.A rate for purchases (other than from new capacity) may be less than the avoided cost if the commission determines a lower rate is consistent with subsection 1, and is sufficient to encourage cogeneration and small power production.

d.Rates for purchases from new capacity must be in accordance with subdivision b, regardless of whether the electric utility making the purchase is simultaneously making sales to the qualifying facility.

e.When rates for purchases are based on estimates of avoided costs over the term of a contract or other legally enforceable obligation, the rates for the purchases do not violate this chapter if the rates for the purchases differ from avoided costs at the time of delivery.

3.Standard rates for purchases.

a.Qualifying facilities with a design capacity of one hundred kilowatts or less are entitled to net energy billing where the output from the qualifying facility reverses the electric meter used to measure sales from the electric utility to the qualifying facility. For each qualifying facility opting for net energy billing:

(1)The purchasing electric utility shall file an annual report of total monthly energy produced with the commission.

(2)The purchasing electric utility may recover metering costs associated with production monitoring from the qualifying facility.

b.Each electric utility must have standard offer contracts for capacity payments, when required by subsection 6, to qualifying facilities operating as peaking units with a design capacity of one megawatt or less. These standard offer contracts:

(1)Must base payments for avoided capacity on the projected cost per kilowatt of a new peaking facility, and adjust the amount of payment to reflect the length of contract overlap into the projected lifetime of the new facility.

(2)Must be accompanied by an annually updated table of capacity payment per kilowatt as a function of contract length.

(3)Must be dependant upon the following capacity factor adjustment for determining capacity payment amounts:

Payment = (Qualifying facility's capacity factor) (Projected capacity factor of the facility to be avoided) (Contracted capacity payment price)

"Capacity factor" means the average on peak period metered capacity delivered to the utility for the billing period divided by the greatest fifteen-minute metered capacity delivered for the on peak period of the same billing period.

c.Each electric utility may have standard rates for purchases from qualifying facilities with a design capacity greater than in subdivisions a and b.

d.The standard rates for purchases under subdivisions b and c of this subsection:

(1)Must be consistent with subsections 1, 5, and 6; and (2)May differ based on the supply characteristics of various technologies.

4.Purchases "as available" or under a legally enforceable obligation. Each qualifying facility may either:

a.Provide energy the qualifying facility determines to be available, in which case the rates for the purchases shall be based on the purchasing utility's avoided costs calculated at the time of delivery; or

b.Provide energy or capacity under a legally enforceable obligation for the delivery of energy or capacity over a specified term, in which case the rates for the purchases must, at the option of the qualifying facility exercised prior to the beginning of the specified term, be based on either:

(1)The avoided costs calculated at the time of delivery; or (2)The avoided costs calculated at the time the obligation is incurred.

5.Factors affecting rates for purchases. In determining avoided costs, the following factors shall, to the extent practicable, be taken into account:

a.The data provided under 18 CFR 292.302, including commission review of the data;

b.The availability of capacity or energy from a qualifying facility during the system daily and seasonal peak periods, including:

(1)The ability of the utility to dispatch the qualifying facility;

(2)The expected or demonstrated reliability of the qualifying facility;

(3)The terms of any contract or other legally enforceable obligation, including the duration of the obligation, termination notice requirements and sanctions for noncompliance;

(4)The extent to which scheduled outages of the qualifying facility can be usefully coordinated with scheduled outages of the utility's facilities;

(5)The usefulness of energy and capacity supplied from a qualifying facility during system emergencies, including its ability to separate its load from its generation;

(6)The individual and aggregate value of energy and capacity from qualifying facilities on the electric utility's system; and (7)The smaller capacity increments and the shorter lead times available with additions of capacity from qualifying facilities.

c.The relationship of the availability of energy or capacity from the qualifying facility, as derived in subdivision b, to the ability of the electric utility to avoid costs, including the deferral of capacity additions and the reduction of fossil fuel use;

d.The costs or savings resulting from variations in line losses from those that would have existed in the absence of purchases from a qualifying facility, if the purchasing electric utility generated an equivalent amount of energy itself or purchased an equivalent amount of electric energy or capacity; and

e.The costs or savings resulting from variations in total air polluting emissions from those that would have existed in the absence of purchases from a qualifying facility.

6.Qualifying facilities are entitled to payment for avoided capacity when utility load forecasts project capacity deficits within ten years and the qualifying facility has entered into a power supply contract with the utility that extends into projected deficit period.

7.Periods during which purchases not required.

a.Any electric utility which gives notice under subdivision b will not be required to purchase electric energy or capacity during any period during which, due to operational circumstances, purchases from qualifying facilities will result in costs greater than those which the utility would incur if it did not make such purchases, but instead generated an equivalent amount of energy itself.

b.Any electric utility seeking to invoke subdivision a of this subsection must notify, in writing, each affected qualifying facility in time for the qualifying facility to cease the delivery of energy or capacity to the electric utility, and must also send a copy of the notice to the commission.

c.Any electric utility which fails to comply with the provisions of subdivision b will be required to pay the same rate for such purchase of energy or capacity as would be required had the period described in subdivision a not occurred.

d.A claim by an electric utility that such a period has occurred or will occur is subject to verification the commission determines appropriate, either before or after the occurrence.

e.This subsection does not apply to purchases made under subdivision a of subsection 3.

OBJECTION

THE LEGISLATIVE COUNCIL'S COMMITTEE ON ADMINISTRATIVE RULES OBJECTS TO

CHANGES TO NORTH DAKOTA ADMINISTRATIVE CODE SECTION 69-09-07-09 ADOPTED BY THE

PUBLIC SERVICE COMMISSION EFFECTIVE MAY 1991 RELATING TO THE RATES THAT

ELECTRIC UTILITIES MUST PAY FOR POWER PURCHASED FROM QUALIFYING FACILITIES.

The committee objects to this rule because:

1.North Dakota Administrative Code Section 69-09-07-09 establishes rates that investor-owned utilities must pay for power purchased from qualified facilities and requires net energy billing. 2.1991 Senate Bill No. 2463, which would have required net energy billing for sales involving investor-owned utilities and rural cooperatives, failed to pass the Senate on a vote of 6 to 43.

3.It is clearly a violation of legislative intent for the Public Service Commission to adopt rules requiring net energy billing by investor-owned utilities when the 1991 Legislative Assembly defeated a bill that would have required the same.

Section 28-32-03.3 provides that after the filing of a committee objection, the burden of persuasion is upon the agency in any action for judicial review or for enforcement of the rule to establish that the whole or portion thereof objected to is within the procedural and substantive authority delegated to the agency. If the agency fails to meet its burden of persuasion, the court shall declare the whole or portion of the rule objected to invalid and judgment shall be rendered against the agency for court costs.

History

• History: Effective June 1, 1981; amended effective May 1, 1991.
• History: Effective August 9, 1991.
• General Authority: NDCC 28-32-03.3

N.D. Admin. Code 69-09-07-10 Rates for sales

1.General rules.

a.Rates for sales:

(1)Shall be just and reasonable and in the public interest; and (2)Shall not discriminate against any qualifying facility in comparison to rates for sales to other customers served by the electric utility.

b.Rates for sales which are based on accurate data and consistent systemwide costing principles shall not be considered to discriminate against any qualifying facility to the extent that such rates apply to the utility's other customers with similar load or other cost-related characteristics:

2.Additional services to be provided to qualifying facilities.

a.Upon request of a qualifying facility, each electric utility shall provide:

(1)Supplementary power;

(2)Backup power;

(3)Maintenance power; and (4)Interruptible power.

b.The commission may waive any requirement of subdivision a if, after notice in the area served by the electric utility and after opportunity for public comment, the electric utility demonstrates and the commission finds that compliance with such requirement will:

(1)Impair the electric utility's ability to render adequate service to its customers; or (2)Place an undue burden on the electric utility.

3.Rates for sales of backup and maintenance power. The rate for sales of backup power or maintenance power:

a.Shall not be based upon an assumption (unless supported by factual data) that forced outages or other reductions in electric output by all qualifying facilities on an electric utility's system will occur simultaneously, or during the system peak, or both; and

b.Shall take into account the extent to which scheduled outages of the qualifying facilities can be usefully coordinated with scheduled outages of the utility's facilities.

N.D. Admin. Code 69-09-07-11 Interconnection costs

1.Obligation to pay. Each qualifying facility shall be obligated to pay any interconnection costs which the commission may assess against the qualifying facility on a nondiscriminatory basis with respect to other customers with similar load characteristics.

2.Reimbursement of connection costs. The commission shall determine the manner for payments of interconnection costs, which may include reimbursement over a reasonable period of time.

N.D. Admin. Code 69-09-07-12 System emergencies

1.Qualifying facility obligation to provide power during system emergencies. A qualifying facility shall be required to provide energy or capacity to an electric utility during a system emergency only to the extent:

a.Provided by agreement between such qualifying facility and electric utility; or

b.Ordered under section 202(c) of the Federal Power Act [16 U.S.C. 824a(c)].

2.Discontinuance of purchases and sales during system emergencies. During any system emergency, an electric utility may discontinue:

a.Purchases from a qualifying facility if such purchases would contribute to such emergency; and

b.Sales to a qualifying facility; provided, that such discontinuance is on a nondiscriminatory

basis.

N.D. Admin. Code 69-09-07-13 Exemption for qualifying facilities

1.Applicability. This section applies to:

a.Any qualifying cogeneration facility;

b.Any qualifying small power production facility which has a power production capacity which does not exceed thirty megawatts; and

c.Any qualifying small power production facility which has a power production capacity over thirty megawatts if such facility produces electric energy solely by the use of biomass as a primary energy source.

2.A qualifying facility described in subsection 1 shall not be considered to be an "electric public utility" as defined in subsection 1 of North Dakota Century Code section 49-03-01.5.

3.Any qualifying facility shall be exempted, except as provided in subsection 4, from any state law or regulation respecting:

a.The rates of electric utilities; and

b.The financial and organizational regulation of electric utilities.

4.A qualifying facility may not be exempted from the provisions of this chapter.

Chapter 69-09-08 Renewable Electricity and Recycled Energy Tracking System

N.D. Admin. Code 69-09-08-01 Purpose, application, and effective date

This chapter establishes a program to include tracking, recording, verifying, and reporting the transactions associated with certificates and credits for electricity generated from renewable electricity sources as defined by North Dakota Century Code section 49-02-25 among electric generators, utilities, and other interested entities within this state and with similar entities in other states. This

chapter applies to all public utilities, electric cooperatives, and municipal electric utilities. The tracking program will be effective as specified in the commission's order that designates a program administrator and implements these rules.

History

• History: Effective July 1, 2006; amended April 1, 2011.

N.D. Admin. Code 69-09-08-02 Definitions

As used in this chapter:

1."Designated representative" means a responsible individual authorized by the owner or operator of a renewable energy facility or purchaser of energy produced from a renewable resource to register that resource with the program administrator. The designated representative must have the authority to represent and legally bind the owner, operator, or purchaser in all matters pertaining to the renewable energy certificates tracking program.

2."Existing facilities" means renewable energy facilities placed in service before January 1, 2001.

3."New facilities" means renewable energy facilities placed in service on or after January 1, 2001.

4."Program administrator" means the independent entity designated by commission order to carry out the administrative responsibilities related to the renewable energy certificates tracking program as set forth in this chapter.

5."Renewable energy certificate" means a document recording one or more renewable energy credits that have been certified by the program administrator as representing electricity generated by a renewable energy facility registered with the tracking system or a certificate imported from a compatible certificates tracking system.

6."Renewable energy certificate account" means an account maintained by the program administrator for the purpose of tracking renewable energy certificates.

7."Renewable energy certificates tracking program" means the process of tracking renewable energy certificates as a means of meeting the requirements set forth in section 69-09-08-04.

8."Renewable energy credit" means the intangible, generally perceived environmental benefits and attributes associated with generating one megawatt hour of renewable electricity or recycled energy that is physically metered and meets the requirements set forth in section 69-09-08-04.

9."Renewable energy facility" means a facility generating electricity from one or more generating units that exclusively rely on an energy source or fuel included in North Dakota Century Code

section 49-02-25.

N.D. Admin. Code 69-09-08-03 Renewable energy certificates tracking program

Renewable energy certificates may be recorded, transferred, and retired as set forth in this chapter.

Except where specifically stated, the provisions of this section apply uniformly to all participants in the tracking program.

N.D. Admin. Code 69-09-08-04 Facilities eligible for participation in the renewable energy certificates tracking program

For a renewable energy facility to be eligible to participate in the tracking program, the facility must be either a new facility or existing facility as defined in section 69-09-08-02 and must also:

1.Register under section 69-09-08-07; and

2.Have output that is capable of being physically metered and verified by the program administrator. A renewable energy facility with more than one generating unit may be metered with a single meter.

N.D. Admin. Code 69-09-08-05 Responsibilities of program administrator

At a minimum, the program administrator shall perform the following functions:

1.Create accounts that track renewable energy certificates for each participant in the tracking program;

2.Award renewable energy certificates to registered renewable energy facilities based on verified meter reads;

3.Maintain public information on the program administrator's web site that provides tracking program information to interested buyers and sellers of renewable energy certificates;

4.Facilitate private trading of renewable energy certificates;

5.Verify the accuracy of metered production data and other information identified in the renewable energy certificate; and

6.Provide an annual report to the commission. Beginning in the year following commission designation of the program administrator, the program administrator shall submit a report to the commission on or before April fifteenth of each year. At a minimum, the report must contain the amount of registered existing and new generating capacity from a renewable energy facility installed in the state, in megawatts, by technology type, the owner or operator of each facility or the facility's certificates, the date each facility began to produce electricity, and the total number of renewable energy credits certified by the program administrator during each month of the reporting period.

N.D. Admin. Code 69-09-08-06 Production and transfer of renewable energy certificates

The program administrator shall administer a tracking program for renewable energy certificates in accordance with the requirements of this chapter.

1.The transfer of renewable energy certificates between parties is effective only when the transfer is recorded by the program administrator.

2.The program administrator shall require that renewable energy certificates be adequately identified prior to recording a transfer and shall issue a confirmation of the transaction to parties when the transfer is recorded.

3.The program administrator shall establish a procedure to ensure that the award, transfer, and retirement of certificates are accurately recorded.

N.D. Admin. Code 69-09-08-07 Registration and certification of renewable energy facilities

To be awarded renewable energy certificates, a designated representative must complete the registration process described in this section.

1.The designated representative shall register with the program administrator each renewable energy generation unit. At a minimum, the registration must include the location, owner, technology, rated capacity of the facility, and evidence that the facility meets the resource eligibility criteria in North Dakota Century Code section 49-02-25.

2.After verifying the information required in the registration process for renewable facilities, the program administrator shall create a renewable energy certificate account for the designated representative of the renewable energy resource.

3.The commission or its program administrator may make onsite visits to any registered unit of a renewable energy resource and may revoke the registration of any unit not in compliance with applicable law and rules.

4.A renewable energy facility may not be awarded renewable energy certificates under this program if it is not registered.

5.Any disputes will be resolved using dispute resolution procedures established by the commission or its program administrator.

N.D. Admin. Code 69-09-08-08 Annual reporting requirements for retail providers

The annual progress report required by North Dakota Century Code section 49-02-34 must be filed in the form and detail the commission may require.

History

• History: Effective April 1, 2011.
• General Authority: NDCC 49-02-34
• Law Implemented: NDCC 49-02-34

Chapter 69-09-09 Wind Facility Decommissioning

N.D. Admin. Code 69-09-09-01 Definitions

1."Capacity factor" means the ratio of the actual output generated by a facility for a period of time, to the output that could be produced at the nameplate generating capacity of that facility.

2."Certificate of operation" means an affidavit executed by the owner certifying to the commission a facility's:

a.Nameplate generating capacity;

b.Annual capacity factor;

c.Annual megawatt hour output; and

d.Monthly megawatt hour output.

3."Commercial wind energy conversion facility" means a wind energy conversion facility with one or more wind turbines that has a total nameplate generating capacity equal to or greater than five hundred kilowatts.

4."Commission" means the public service commission.

5."Construction" means any clearing of land, excavation, or other action that would affect the environment of the site of a facility, but does not include activities incident to preliminary engineering or environmental studies.

6."Decommissioning plan" means a plan filed with the commission that includes:

a.The anticipated life of the facility;

b.A decommissioning cost estimate, excluding salvage offsets that reduce decommissioning cost;

c.A description of the method used for determining the decommissioning cost estimate;

d.The anticipated manner in which the project will be decommissioned;

e.A description of any expected effects on present and future natural resource development; and

f.A detailed plan of financial assurance sufficient to ensure decommissioning.

7."Existing facility" means a facility for which a certificate of site compatibility was issued prior to July 1, 2017, or, if no certificate of site compatibility was issued, a facility that commenced operation prior to July 1, 2020.

8."Facility" means a commercial wind energy conversion facility, including wind turbines, towers, bases, blades, transformers, cables, lines, substations, concrete, fences, facility access roads, and all areas disturbed by the construction, operation, maintenance, or decommissioning activities.

9."Owner" means a person who holds a certificate of site compatibility pursuant to North Dakota Century Code chapter 49-22, or if no certificate was issued, a person who owns a facility or

part of a facility.

History

• History: Effective October 1, 2008; amended effective July 1, 2017; July 1, 2020.

N.D. Admin. Code 69-09-09-02 Decommissioning responsibility

The owner is responsible for decommissioning the facility and for all costs associated with decommissioning.

N.D. Admin. Code 69-09-09-03 Abandonment and useful life - Certificate of operation

1.After construction of a facility is complete, the owner shall annually file a certificate of operation with the commission for that facility by April first of each year.

2.If no energy is generated by one or more wind turbines for the time period specified in the certificate of operation, a written explanation for the nongenerating wind turbines must accompany the certificate of operation.

3.A facility is presumed to be at the end of its useful life if its annual capacity factor is less than ten percent for two consecutive years.

4.A facility is presumed to be abandoned if, after commencement of construction and prior to completion, a period of twenty-four consecutive months has passed with no significant construction.

5.A presumption under this section may be rebutted by filing a plan for commission approval outlining the steps and schedule for continuing construction or operation of the facility or wind turbine.

N.D. Admin. Code 69-09-09-04 Decommissioning period

The owner shall begin decommissioning within twelve months after abandonment or the end of its useful life. Decommissioning must be completed within twenty-four months after abandonment or the end of its useful life unless the commission approves a plan specifying the steps and schedules to return the facility to operation.

N.D. Admin. Code 69-09-09-05 Decommissioning requirements

1.Decommissioning the facility includes:

a.Dismantling and removal of all towers, turbine generators, transformers, fencing, overhead cables, inverters, transformers, substations and other equipment;

b.Removal of underground cables to a depth of twenty-four inches [60.96 centimeters];

c.Removal of foundations, buildings, and ancillary equipment to a depth of:

(1)Three feet [91.44 centimeters] for facilities constructed before July 1, 2017; and (2)Four feet [121.92 centimeters] for facilities constructed on or after July 1, 2017;

d.Site restoration and reclamation to the approximate original topography that existed prior to construction of the facility with topsoil respread over the disturbed areas at a depth similar to that in existence prior to the disturbance; and

e.Grading and restoring topsoil of areas disturbed by the facility, and reseeding according to natural resource conservation service recommendations, unless the commission approves an owner request signed by the applicable landowner, identifying the surface features the landowner prefers to remain in place, and the reason the landowner prefers those features to remain.

2.The commission may waive a decommissioning requirement upon receipt of a request signed by the applicable landowner and finding good cause that the requirement be waived.

History

• History: Effective October 1, 2008; amended effective July 1, 2017; July 1, 2020.

N.D. Admin. Code 69-09-09-06 Decommissioning plan

1.Prior to the commencement of operation of a facility, the owner must have an approved decommissioning plan.

2.The commission shall make a determination on the decommissioning plan no later than sixty days after the decommissioning plan is deemed complete by the commission.

3.A decommissioning cost estimate for a facility:

a.Must be made by a professional engineer licensed by the state of North Dakota and at the owner's expense;

b.May include a decommissioning cost estimate, including salvage value, in addition to the decommissioning cost estimate, excluding salvage value;

c.Must be updated and filed with the commission ten years after initial approval of the decommissioning plan and then continue to be updated and filed with the commission every five years until decommissioning is complete.

4.The commission may at any time require the owner to file an updated decommissioning plan.

History

• History: Effective October 1, 2008; amended effective October 1, 2010; July 1, 2017.

N.D. Admin. Code 69-09-09-07 Existing facilities

The owner of an existing facility shall provide financial assurance upon ten years of operation sufficient to complete decommissioning.

History

• History: Effective October 1, 2008; amended effective July 1, 2017; July 1, 2020.

N.D. Admin. Code 69-09-09-08 Financial assurance

1.Prior to commencement of construction of a facility, the owner shall provide financial assurance equal to five percent of the estimated cost of construction of the facility that may be used to decommission the facility in the event it is abandoned prior to operation. Within sixty days of receipt of written notice from the owner that the facility is commercially operational and receipt of financial assurance pursuant to subsection 2, the commission shall return or release said financial assurance provided to the commission.

2.Prior to commencement of operation of a facility, the owner shall provide financial assurance that is acceptable to the commission and sufficient to ensure complete decommissioning.

3.Financial assurance may be in the form of a performance bond either as, or combination of, cash escrow held by a federal insured financial institution, a surety bond, irrevocable letter of credit, guarantee, parent guarantee, or another form of financial assurance that is acceptable to the commission to cover the anticipated costs of decommissioning.

4.The commission may allow the owner to provide financial assurance through an incremental bond schedule. To be given consideration, an incremental bond schedule must include an initial bond increment prior to commencement of operation.

5.The commission may accept a guarantee or parent guarantee if:

a.The owner has been in continuous operation as a business entity for five years preceding the application. The commission may accept a guarantee with less than five years of continuous operation if guaranteed with a parent guarantee and the parent company has been in operation for at least five years preceding the application; and

b.The owner or parent guarantor has or is one of the following:

(1)A current rating in the "A" category or higher for its most recent bond issuance or issuer rating as issued by Moody's Investors Service, Standard and Poor's Corporation, or an equivalent rating by any other nationally recognized statistical rating organization, as defined and approved by the United States securities and exchange commission, that is acceptable to the commission. If an organization has different ratings among various rating organizations, the commission shall accept the higher of the ratings;

(2)A tangible net worth of at least ten million dollars, a ratio of total liabilities to net worth of 2.5 or less, and a ratio of current assets to current liability of 1.2 or greater; or (3)An electric public utility as defined by subsection 2 of North Dakota Century Code

section 49-03-01.5.

6.The total amount of an outstanding guarantee for decommissioning may not exceed twentyfive percent of the owner's tangible net worth in the United States.

7.The combined total amount of an outstanding guarantee and parent guarantee for decommissioning my not exceed twenty-five percent of the owner's and parent guarantor's combined tangible net worth in the United States.

8.If any financial assurance is modified, canceled, suspended, or revoked, the owner shall immediately notify the commission and provide financial assurance as soon as practicable sufficient to ensure complete decommissioning.

9.The commission may require additional financial assurance upon a finding that the current financial assurance for a facility is not sufficient to ensure complete decommissioning.

History

• History: Effective October 1, 2008; amended effective July 1, 2017; July 1, 2020.

N.D. Admin. Code 69-09-09-09 Failure to decommission

If the owner does not complete decommissioning, the commission may take action to complete decommissioning, including action to require forfeiture of a bond. The entry into a participating landowner agreement shall constitute agreement and consent of the parties to the agreement, their respective heirs, successors, and assigns, that the commission may take such action as may be necessary to decommission a facility, including the exercise by the commission, commission staff, and their contractors of the right of ingress and egress for the purpose of decommissioning the facility.

N.D. Admin. Code 69-09-09-10 Wind energy conversion facility - Waiver

The commission may grant a waiver of any requirement described in sections 69-09-09-03, 69-09-09-06, or 69-09-09-08 for a commercial wind energy conversion facility with a nameplate generating capacity of no more than five megawatts of electricity upon a motion demonstrating good cause for the waiver.

History

• History: Effective July 1, 2018.

Chapter 69-09-10 Solar Facility Decommissioning

N.D. Admin. Code 69-09-10-01 Definitions

1."Capacity factor" means the ratio of the actual output generated by a facility for a period of time, to the output that could be produced at the nameplate generating capacity of that facility.

2."Certificate of operation" means an affidavit executed by the owner certifying to the commission a facility's:

a.Nameplate generating capacity;

b.Annual capacity factor;

c.Annual megawatt hour output; and

d.Monthly megawatt hour output.

3."Commercial solar energy conversion facility" means a solar energy conversion facility that has a total nameplate generating capacity equal to or greater than five hundred kilowatts.

4."Commission" means the public service commission.

5."Construction" means any clearing of land, excavation, or other action that would affect the environment of the site of a facility, but does not include activities incident to preliminary engineering or environmental studies.

6."Decommissioning plan" means a plan filed with the commission that includes:

a.The anticipated life of the facility;

b.A decommissioning cost estimate, excluding salvage offsets that reduce decommissioning cost;

c.A description of the method used for determining the decommissioning cost estimate;

d.The anticipated manner in which the project will be decommissioned;

e.A description of any expected effects on present and future natural resource development; and

f.A detailed plan of financial assurance sufficient to ensure decommissioning.

7."Existing facility" means a facility for which a certificate of site compatibility has been issued prior to July 1, 2020, or, if no certificate of site compatibility was issued, a facility that commenced operation prior to July 1, 2020.

8."Facility" means a commercial solar energy conversion facility, including solar modules, racking, anchors, bolts, foundations, bases, transformers, cables, lines, substations, concrete, fences, facility access roads, towers, and all areas disturbed by the construction, operation, maintenance, or decommissioning activities.

9."Owner" means a person that holds a certificate of site compatibility pursuant to North Dakota Century Code chapter 49-22, or if no certificate was issued, a person that owns a facility or

part of a facility.

N.D. Admin. Code 69-09-10-02 Decommissioning responsibility

The owner is responsible for decommissioning the facility and for all costs associated with decommissioning.

N.D. Admin. Code 69-09-10-03 Abandonment and useful life - Certificate of operation

1.After construction of a facility is complete, the owner annually shall file a certificate of operation with the commission for that facility by April first of each year.

2.A facility is presumed to be at the end of its useful life if its annual capacity factor is less than five percent for two consecutive years.

3.A facility is presumed to be abandoned if, after commencement of construction and prior to completion, a period of twenty-four consecutive months has passed with no significant construction.

4.A presumption under this section may be rebutted by filing a plan for commission approval outlining the steps and schedule for continuing construction or operation of the facility.

N.D. Admin. Code 69-09-10-04 Decommissioning period

The owner shall begin decommissioning within twelve months after abandonment or the end of its useful life. Decommissioning must be completed within twenty-four months after abandonment or the end of its useful life unless the commission approves a plan specifying the steps and schedules to return the facility to operation.

N.D. Admin. Code 69-09-10-05 Decommissioning requirements

1.Decommissioning the facility includes:

a.Dismantling and removal of all panel racking, photovoltaic modules, supports, anchors, towers, fencing, overhead cables, inverters, transformers, substations, and other equipment;

b.Removal of underground cables to a depth of twenty-four inches [60.96 centimeters];

c.Removal of pilings and anchors, foundations, buildings, and ancillary equipment to a depth of four feet [121 .92 centimeters].

d.Site restoration and reclamation to the approximate original topography that existed prior to construction of the facility with topsoil respread over the disturbed areas at a depth similar to that in existence prior to the disturbance; and

e.Grading and restoring topsoil of areas disturbed by the facility, and reseeding according to natural resource conservation service recommendations.

2.The commission may waive a decommissioning requirement upon receipt of a request signed by the applicable landowner and finding good cause that the requirement be waived.

N.D. Admin. Code 69-09-10-06 Decommissioning plan

1.Prior to the commencement of operation of a facility, the owner shall have an approved decommissioning plan.

2.The commission shall make a determination on the decommissioning plan no later than sixty days after the decommissioning plan is deemed complete by the commission.

3.A decommissioning cost estimate for a facility:

a.Must be made by a professional engineer licensed by the state of North Dakota and at the owner's expense;

b.May include a decommissioning cost estimate, including salvage value, in addition to the decommissioning cost estimate, excluding salvage value;

c.Must be updated and filed with the commission ten years after initial approval of the decommissioning plan and then continue to be updated and filed with the commission every five years until decommissioning is complete.

4.The commission may at any time require the owner to file an updated decommissioning plan.

N.D. Admin. Code 69-09-10-07 Existing facilities

The owner of an existing facility shall provide financial assurance upon ten years of operation sufficient to complete decommissioning.

N.D. Admin. Code 69-09-10-08 Financial assurance

1.Prior to commencement of construction of a facility, the owner shall provide financial assurance equal to five percent of the estimated cost of construction of the facility that may be used to decommission the facility in the event it is abandoned prior to operation. Within sixty days of receipt of written notice from the owner that the facility is commercially operational and receipt of financial assurance pursuant to subsection 2, the commission shall return or release said financial assurance provided to the commission.

2.Prior to commencement of operation of a facility, the owner shall provide financial assurance that is acceptable to the commission and sufficient to ensure complete decommissioning.

3.Financial assurance may be in the form of a performance bond either as, or combination of, cash escrow held by a federal insured financial institution, a surety bond, irrevocable letter of credit, guarantee, parent guarantee, or another form of financial assurance that is acceptable to the commission to cover the anticipated costs of decommissioning.

4.The commission may allow the owner to provide financial assurance through an incremental bond schedule. To be given consideration, an incremental bond schedule must include an initial bond increment prior to commencement of operation.

5.The commission may accept a guarantee or parent guarantee if:

a.The owner has been in continuous operation as a business entity for five years preceding the application. The commission may accept a guarantee with less than five years of continuous operation if guaranteed with a parent guarantee and the parent company has been in operation for at least five years preceding the application; and

b.The owner or parent guarantor has or is one of the following:

(1)A current rating in the "A" category or higher for its most recent bond issuance or issuer rating as issued by Moody's Investors Service, Standard and Poor's Corporation, or an equivalent rating by any other nationally recognized statistical rating organization, as defined and approved by the United States securities and exchange commission, that is acceptable to the commission. If an organization has different ratings among various rating organizations, the commission shall accept the higher of the ratings;

(2)A tangible net worth of at least ten million dollars, a ratio of total liabilities to net worth of 2.5 or less, and a ratio of current assets to current liability of 1.2 or greater; or (3)An electric public utility as defined by subsection 2 of North Dakota Century Code

section 49-03-01.5.

6.The total amount of an outstanding guarantee for decommissioning may not exceed twenty-five percent of the owner's tangible net worth in the United States.

7.The combined total amount of an outstanding guarantee and parent guarantee for decommissioning may not exceed twenty-five percent of the owner's and parent guarantor's combined tangible net worth in the United States.

8.If any financial assurance is modified, canceled, suspended, or revoked, the owner immediately shall notify the commission and provide financial assurance as soon as practicable sufficient to ensure complete decommissioning.

9.The commission may require additional financial assurance upon a finding that the current financial assurance for a facility is not sufficient to ensure complete decommissioning.

N.D. Admin. Code 69-09-10-09 Failure to decommission

If the owner does not complete decommissioning, the commission may take action to complete decommissioning, including action to require forfeiture of a bond. The entry into a participating landowner agreement constitutes agreement and consent of the parties to the agreement, their respective heirs, successors, and assigns, that the commission may take such action as may be necessary to decommission a facility, including the exercise by the commission, commission staff, and their contractors of the right of ingress and egress for the purpose of decommissioning the facility.

N.D. Admin. Code 69-09-10-10 Solar energy conversion facility - Waiver

The commission may grant a waiver of any requirement described in sections 69-09-10-03, 69-09-10-06, or 69-09-10-08 for a commercial solar energy conversion facility with a nameplate generating capacity of no more than five megawatts of electricity upon a motion demonstrating good cause for the waiver.

Chapter 69-09-11 Common Pipeline Carriers

N.D. Admin. Code 69-09-11-01 Pipeline carrier tariffs

A common pipeline carrier shall maintain its tariffs and have them available for production upon commission request.

History

• History: Effective January 1, 2022.
• General Authority: NDCC 28-32-02, 49-19-17
• Law Implemented: NDCC 49-19-17

Chapter 69-09-12 Resource Plans and Security

N.D. Admin. Code 69-09-12-01 Definitions

1."Resource plan" means a set of resource options an electric public utility plans to use to meet the electric capacity and energy requirements of the utility's customers over a planning horizon, including an explanation of the electric supply and demand circumstances when each resource option would be used to meet the capacity and energy needs in an adequate and reliable manner.

2."Externality" means numerical costs or quantified values assigned to represent environmental costs that are not internalized in the cost of production, or the market price of electricity from a particular electric resource or the alleged costs of complying with future environmental laws or regulations that have not yet been enacted.

3."Renewable integration cost" means the cost of measures to help meet the incremental needs of the system as more renewable energy is added to the resource mix.

4."Unserved energy" means the amount of end-customer demand measured in megawatt-hours that cannot be supplied due to a deficiency of generation either generated or imported by the electric public utility or transmission capacity.

5."Security" means physical security and cybersecurity.

History

• History: Effective January 1, 2023; amended effective April 1, 2024.

N.D. Admin. Code 69-09-12-02 Resource plan procedure

1.An electric public utility shall file a resource plan on a three-year cycle. The electric public utility may file a supplement to the plan with necessary updates and shall file a supplement upon commission request.

2.The commission may investigate a resource plan. Foregoing an investigation or inaction upon completion of an investigation does not bind the commission in the commission's review of a resource plan in conjunction with a rate case or bind the commission for the purpose of setting rates.

3.The commission shall issue a notice of opportunity to comment on the resource plan when opening an investigation under subsection 2. The comment period must remain open for a period of sixty days, unless ordered otherwise by the commission.

4.During an investigation, an electric public utility may request a commission determination on any issue related to the resource plan. Approval, rejection, or modification of a resource plan, or a commission determination may be presented as prima facie evidence in other proceedings.

5.The commission shall designate by order the commencement of the cycle wherein a resource plan must be filed. The commission may allow for a variance from a filing requirement or procedure upon request.

N.D. Admin. Code 69-09-12-03 Resource plan attributes

1.A resource plan must identify the resources needed to meet forecasted capacity and energy needs, including a reserve requirement, subject to various objectives, including reliability, planning, operational, and regulatory requirements. The resource plan must provide a North Dakota preferred plan.

2.If an electric public utility's existing resources are inadequate to meet forecasted capacity and energy requirements, the utility shall identify in the resource plan the proposed actions to meet current and future electric capacity and energy needs, including generating facility additions of various types, sizes, fuel types, any known new transmission facilities, life extensions of existing generation facilities, load-modifying equipment, sponsored conservation programs, market purchases, power purchases from other utilities, and contracted capacity.

3.All resources must be evaluated on a consistent and comparable basis, and the resource plan must describe, and select resources representing the least-cost plan for providing adequate, safe, and reliable service to ratepayers consistent with the public interest and North Dakota energy policy.

4.The resource plan must have a planning horizon of at least fifteen years detailing both supplyside and demand-side resources.

5.The resource plan must describe how the electric public utility intends to meet the forecasted capacity and energy needs within the next five years, along with construction and in-service timelines for generation and associated interconnection and network upgrade and new transmission facilities. The resource plan also must describe how the electric public utility intends to meet the forecasted energy and capacity needs for at least a fifteen-year planning horizon.

6.Except as otherwise required by law or by order of the commission, the North Dakota preferred plan may not select resources based on a carbon cost, greenhouse gas reduction goals, renewable energy standards, emissions goal, or other externalities.

7.The electric public utility may provide alternative scenarios with sensitivities based on proposed and current federal, state, and utility goals and mandates relating to carbon cost, emissions goal, or other externalities.

8.The electric public utility shall describe how scenarios and sensitivities influenced the selection of the North Dakota preferred plan. The scenarios and sensitivities must be evaluated on a consistent and comparable basis, and the utility shall identify and assess the risks of each scenario and sensitivity.

N.D. Admin. Code 69-09-12-04 Filing requirements

1.The resource plan must describe the:

a.Key data, assumptions, model inputs, information used in producing forecasts and models, and how uncertainties in assumptions were incorporated into the analysis;

b.Type, cost, and relevant operating characteristics of demand-side and supply-side resources considered and a description of the type and cost of additional transmission facilities necessitated by the resources;

c.Modeling and methodological approach to load forecasting, an assessment of load forecast uncertainty, and the cost and effectiveness of existing and future utility and state-sponsored conservation and load management efforts;

d.Projected load for the electric public utility over the planning horizon and the underlying assumptions for the projection. The information must be as geographically specific as possible and describe how the electric public utility will meet the projected load; and

e.Criteria used in determining the appropriate level of reliability, including any required reserve or capacity margin seasonal accreditation levels and how the determinations influenced the resource plan.

2.The resource plan must include:

a.A robust set of scenarios and sensitivities, including changes to the resource mix, fuel prices, load, resource costs, inflation, operating and maintenance costs, capital costs, transmission interconnection and network upgrade costs, congestion costs, renewable integration costs, and resource accreditation.

b.Reliability and resource adequacy assessments using quantitative metrics capturing the size, frequency, duration, and timing during extreme weather events and normal weather conditions for the fifth, tenth, and final year of the planning horizon. The assessment should include the annual expected unserved energy, the annual expected cost of unserved energy, peak seasonal capacity shortfall in megawatts, number of negative capacity shortfalls, average capacity shortfall in megawatts, longest hourly capacity shortfall, and number of hours requiring the utility to use the maximum available energy imports during a capacity shortfall.

c.Reliability and resource adequacy assessments using quantitative metrics, including expected unserved energy during correlated natural gas-fired generation fuel delivery outages for the fifth, tenth, and final year of the planning horizon.

d.A description of energy conversion facilities and associated interconnection and network upgrade and new transmission facilities the electric public utility intends to own and operate, or from which the utility intends to purchase energy output during the ensuing planning horizon, and the energy conversion facilities to be removed from service over the planning horizon.

e.Plans for energy conversion facility retirements, asset extensions, derates, market purchases and sales, and how scenarios affect cost, affordability, reliability, and resiliency.

f.To the extent possible, qualitative benefits and quantitative value of baseload and loadfollowing generation resources and the value of proximity of such resources to load.

g.The estimated annual and total revenue requirement broken out by new and existing resources by cost category, such as generation, transmission, fuel, and energy efficiency.

h.Any other information as may be requested by the commission.

3.The resource plan must include information on:

a.Expansion of, improvements to, and more efficient use of existing electric public utility generation, distribution, and transmission facilities;

b.Opportunities for energy conversion facilities, including economic opportunities to partner with other utilities in constructing and operating new facilities and extending the useful lives of existing facilities;

c.Opportunities to pursue power purchase agreements with or develop baseload and loadfollowing generation within the state;

d.Opportunities to pursue power purchase agreements, demand- or supply-side resources, or develop generation;

e.Distributed generation, including generating capacity provided by cogeneration technologies relying on renewable resources, nonutility generation, and other sources;

f.Recent or expected changes to generation dispatch across all generation technologies;

g.Opportunities for existing and planned transmission facilities to reduce congestion, transmission line losses, energy costs, and to increase export or import capability;

h.The accuracy of the peak demand and energy forecasts compared to the previous integrated resource plan forecasts and an explanation for the causes of any deviation from the previous integrated resource plan forecasts;

i.The risk of fuel supply disruption due to extreme weather or market events; and

j.How the electric public utility intends to reconcile potential jurisdictional differences in resource selection.

N.D. Admin. Code 69-09-12-05 Security

1.An electric public utility shall meet with the commission annually to report on security preparedness.

2.The report must provide:

a.Information on the policies, procedure, and process used to inform the management of security risk;

b.Information on any critical technology, constraints related to procurement, supply chain risk, impact of compromise to the supply chain, and controls to manage risk associated with dependency on external entities;

c.An assessment of emerging threats and efforts taken by the electric public utility to implement security measures;

d.A description of the process used to support compliance with applicable standards, laws, regulations, and best practices;

e.A description of the policies and protections used to ensure the security of information and operational systems and safeguard against loss of confidential information;

f.Information on activities to monitor, detect, and analyze information related to security threats;

g.Information on the systems used for collaboration and communication of information and intelligence sharing;

h.Information on activities used to address a detected security incident, contain impacts, limit potential damage, and manage consequences of a security incident;

i.Information on any plans to maintain resilience and business continuity, timely recovery to normal operations, and corrective actions after occurrence of an incident;

j.Information or plans for asset sharing with other electric public utilities and electrical cooperatives to maintain services in the event of a security incident; and

k.Information on tabletop and field training exercises regarding security.

3.The commission may close the meeting to discuss the security report, unless the commission orders otherwise.

History

• History: Effective January 1, 2023; amended effective April 1, 2024.
• Law Implemented: NDCC 49-05-17

Article 69-10 Testing and Safety

Chapter 69-10-01 Weights and Measures - General

N.D. Admin. Code 69-10-01-01 Definitions

As used in article 69-10:

1."Audit trail" means an electronic count or information record of the changes to the values of the calibration or configuration parameters of a device.

2."Automatic bulk weighing system" means a weighing system adapted to the automatic weighing of bulk commodities in successive drafts or predetermined amounts, automatically recording the no-load and loaded weight values, and accumulating the net weight of each draft.

3."Batching scale" means a noncommercial weighing or measuring device used to determine, in

part, the amount of an ingredient in a finished, manufactured commodity.

4."Certify" means to seal, if upon testing and inspection, a weighing or measuring device is within the permitted tolerance and properly installed.

5."Commerce" means the distribution or consumption of quantities, things, produce, commodities, or articles which may be offered or submitted by any person for sale or hire.

6."Commercial weighing and measuring device" includes:

a.A weighing or measuring device commercially used or employed in establishing size, quantity, extent, area, or measurement of quantities, things, produce, or articles for distribution or consumption, purchased, offered, or submitted for sale, hire, or award, or in computing any basic charge or payment for services rendered on the basis of weight or measure; and

b.An accessory attached to or used in connection with a commercial weighing or measuring device when such accessory is so designed or installed that its operation affects the accuracy of the device.

7."Equipment repair notice tag" means a tag that allows a device to be operated for sixty days from its inspection date pending correction of cited defects relating to the device or any of its required peripheral equipment.

8."Liquid or liquefied petroleum gas computing pump" means a device that provides fuel or liquefied petroleum gas to a consumer.

9."Medical marijuana" means medical marijuana as regulated by the state department of health.

10."NCWM" means the national conference on weights and measures.

11."NIST" means the United States department of commerce, national institute of standards and technology.

12."Noncommercial device" means a tag or seal applied to a device which has not been inspected and tested, does not meet applicable design or tolerance requirements, or is no longer being used commercially.

13."NTEP" means the national conference on weights and measures, national type evaluation program.

14."Quality assurance inspected" means a tag applied to a device which either passed a quality assurance test or passed a test in response to a consumer complaint.

15."Random testing" means the random retesting and recertification by a weights and measures inspector of any weighing or measuring device being tested.

16."Registered service person" means an individual who for hire, award, commission, or payment of any kind installs, services, repairs, or reconditions a commercial weighing or measuring device, and who registers with the commission.

17."Rejected for repair" means a seal applied to a device which has been inspected and tested and does not meet applicable design or tolerance requirements.

18."Retail fuel device" means a commercial, indicating fuel or fuel additive device used to deliver fuel or fuel additive used in internal-combustion engines.

19."Seal" means marking a weighing or measuring device to show certification or rejection.

20."Security seal" means either a crimpable lead and wire seal, a plastic and wire pressure-sensitive seal, or a pressure-sensitive adhesive sealing sticker, permanently attached to a weighing or measuring device to prevent or indicate unauthorized access to the tolerance-adjusting mechanisms of that device.

21."Single draft weighing" means simultaneously weighing each end of a vehicle or individual elements of coupled combination vehicles.

22."Split-weighing" means determining the weight of a vehicle, combination vehicle, or a commodity by adding together the results obtained by separately and not simultaneously weighing each end of such vehicle or individual elements of such coupled combinations.

23."Standard" means test equipment used for certifying weighing or measuring devices.

24."Variance permit" means a temporary or permanent suspension of a particular rule granted to an owner or operator of a commercial weighing or measuring device basis.

25."Weights and measures inspector" means a commission employee engaged in enforcing provisions of article 69-10 and North Dakota Century Code title 64.

July 1, 1997; July 1, 1998; August 1, 2000; January 1, 2002; March 1, 2003; November 1, 2003; July 1, 2008; January 1, 2021.

History

• History: Amended effective April 1, 1992; August 1, 1993; September 1, 1994; February 1, 1996;
• Law Implemented: NDCC 64-02-03

N.D. Admin. Code 69-10-01-02 Installation by other than a registered service person

A person, other than a registered service person, who installs a commercial weighing or measuring device must report the installation to the commission within seven working days from the day the installation was completed. The device must then be certified by a weights and measures inspector or a registered service person before the device can be used in commerce.

A weighing and measuring device may only be certified for commercial use by the commission or a registered service person. Certification must take place at the location of intended use unless the device is otherwise designed, in which case the device must be tested by the commission or a registered service company at the location of intended use within fifteen months of its installation. The commission may certify a weighing or measuring device by actual testing of the device, or by witnessing the test.

A commercial weighing and measuring device may only be repaired, tested, calibrated, and placed into commercial service by a registered service person, or tested and adjusted, as allowed by law, and certified for commercial service by the commission, whichever is applicable.

The commission or a registered service person may inspect, test, and calibrate a commercial weighing or measuring device annually. The owner of any commercial weighing or measuring device is responsible for its accuracy and must have it tested once every fifteen months. The commission may extend the fifteen-month certification interval up to twenty-four months.

History

• History: Amended effective April 1, 1992; August 1, 1993; July 1, 1997; July 1, 1998; January 1, 2021. 69-10-01-02.1. Certification.
• History: Effective April 1, 1992; amended effective August 1, 1993; September 1, 1994; February 1, 1996; July 1, 1997; July 1, 1998; January 1, 2021. 69-10-01-02.2. Repair and calibration.
• History: Effective July 1, 1997. 69-10-01-02.3. Device recertification.
• History: Effective July 1, 2008; amended effective January 1, 2021.

N.D. Admin. Code 69-10-01-03 Certifying and sealing

1.A weighing or measuring device used in commerce must be certified and sealed. A security seal must be installed where applicable, to prevent or indicate unauthorized adjustments to the calibration of the device. If a security seal is unable to be installed, the device must be equipped with an audit trail. The audit trail number must be recorded on the test report.

2.A security seal must:

a.Be registered with the commission;

b.If utilizing crimpable or lead wire type, contain the year in which the security seal was applied on one side and the initials of the registered service company certifying the device on the other side;

c.If utilizing a pressure-sensitive adhesive sticker, contain the name of the registered service company certifying the device, the word "sealed", and a place to write the year of installation; and

d.If utilizing a plastic and wire pressure-sensitive seal, contain the company's name or initials and a unique numeric serial number.

3.A certification seal must:

a.Contain the following information:

(1)Name and telephone number of the commission or registered service company certifying the device;

(2)Prominently display the words "tested and approved"; and (3)Utilize preprinted month and year indicators that are to be punched out upon device certification;

b.Be made of sufficient quality material, other than paper, to remain readable and unaffected by the elements; and

c.Be installed externally and located so that it is clearly visible to the public using the device.

4.A registered service company may not use green, red, yellow, or orange certification seals.

These colors are reserved for commission use.

5.It is unlawful to remove, or allow to be removed, an official tag, certification seal, or security seal without commission approval.

Repealed effective January 1, 2021. 69-10-01-03.2. Equipment repair notice - Applicable usage.

An equipment repair notice tag defaults to a rejection seal if the device is not repaired or modified to a compliant state within sixty days. An equipment repair notice tag may be used in the following circumstances:

1.During the period any one of the following is pending:

a.Response to a variance permit request;

b.Completion of design requirements; or

c.Repair of required peripheral equipment;

2.When a point of sale liquid-measuring device:

a.Is a retail liquid-measuring device that is no more than two cubic inches [32.77 milliliters] outside of the applicable tolerance for over-registration or ten cubic inches [163.87 milliliters] outside the applicable tolerance for under-registration, using a five gallon [18.93 liter] test measure;

b.Is a vehicle tank or wholesale liquid-measuring device that is no more than twenty-two cubic inches [360.52 milliliters] outside of the applicable tolerance for over-registration or one hundred cubic inches [1638.71 milliliters] outside the applicable tolerance for under-registration, using a one hundred gallon [378.54 liter] prover;

c.Is a liquefied petroleum gas liquid-measuring device that is no more than five-tenths of one percent outside of the applicable tolerance for over-registration or five percent outside the applicable tolerance for under-registration, using a one hundred gallon [378.54 liter] test with a one hundred gallon [378.54 liter] prover;

d.Is a liquefied petroleum gas or anhydrous ammonia liquid-measuring device equipped with an automatic temperature compensating system, the allowable error difference between an activated and not activated mechanical or electronic automatic temperature compensating system is no more than one-half of one percent outside of the applicable tolerance for over-registration or under-registration; or

e.Is a liquid hydrocarbon or agri-chemical measuring device that has an automatic temperature compensating system, the difference between the meter error (expressed as a percentage) for results determined with and without the mechanical or electronic automatic temperature compensating system activated may be no more than one-tenth of one percent outside of the applicable tolerance for over-registration or under-registration;

3.When a point of sale weighing device is no more than one scale division outside of applicable tolerance for over-registration or two scale divisions outside the applicable tolerance for under-registration;

4.When a point of purchase or point of sale weighing device is no more than one scale division outside of applicable tolerance for over-registration or under-registration; or

5.When fifty-one percent or more of retail fuel devices tested, either by grade or by location, over-registers:

a.Four cubic inches [65.55 milliliters] or more when using a five-gallon [18.93-liter] test measure; or

b.Forty-seven cubic inches [770.19 milliliters] or more when using a one hundred-gallon [378.54-liter] prover.

January 1, 2021.

History

• History: Amended effective April 1, 1992; August 1, 1993; September 1, 1994; July 1, 1997; July 1, 1998; January 1, 2002; July 1, 2008; January 1, 2021. 69-10-01-03.1. Registration of a new or moved commercial device.
• History: Effective March 1, 2003; amended effective November 1, 2003; May 1, 2005; July 1, 2008;

N.D. Admin. Code 69-10-01-04 Registration of new devices - Moving existing devices

Repealed effective April 1, 1992. 69-10-01-04.1. Variance permit requests.

The operator of any commercial weighing or measuring device, other than an operator seeking a split-weigh variance permit under section 69-10-01-04.2, may make written request for a variance permit from the commission under North Dakota Century Code section 64-02-02. The request for a variance permit must contain:

1.The name, address, and telephone number of the business making the request along with the name of its contact person and the reason for the request;

2.A plan for compliance over a period not to exceed one hundred eighty days if the variance permit request results from a rejection; or, a plan for compliance over a period not to exceed five years if the variance request results from economic hardship;

3.The manufacturer's name, type, location, serial number, class, deck length, and capacity of the device;

4.The maximum amount that will be weighed on the device, along with a certified letter from an engineer or competent scale engineering authority certifying that operating the device at that weight will not constitute a safety hazard (if applying for a variance permit that will allow a device to be used beyond its rated sectional or concentrated load capacity); and

5.Detailed information showing that compliance with specific regulations will cause economic hardship (if applicable to the variance permit request) and must include:

a.Specific details on how adhering to current laws and rules places an economic hardship on the operation;

b.Itemized list of costs associated with adhering to current laws and rules; and

c.Any additional information requested by the commission.

A variance permit granted by the commission is a temporary variance permit and does not become permanent until sufficient time to conclude inspection and testing (usually two years) has elapsed. A notice of the variance permit must be conspicuously posted on the device during the time the temporary variance permit is in effect. An owner or operator shall reapply for the variance permit prior to the current variance permit expiration date.

The operator of any motor truck or motor truck dump scale installed after April 1, 1965, may make written request for a permanent split-weigh variance permit from the commission under North Dakota Century Code section 64-02-02. The request for a variance permit must contain:

1.The name, address, and telephone number of the business making the request along with the name of its contact person and the reason for the request;

2.The manufacturer's name, type, location, deck length, serial number, and capacity of the device;

3.The maximum amount of weight that will be placed upon the device at any time during the split-weighing operation. If that maximum weight exceeds the rated sectional capacity or concentrated load capacity of the device, the applicant must also include a letter from an engineer or competent scale engineering authority certifying that operating the device at that weight will not constitute a safety hazard;

4.The maximum distance between the front and rear outer axles of the vehicle or coupled-combination vehicle that will be split-weighed;

5.A statement in the variance permit request certifying that each axle of the vehicle or each axle of the coupled-combination vehicle will rest on a smooth straight surface, in the same plane with, and not to exceed one-third inch [8.47 millimeters] per foot [30.48 centimeters] out of level with, the scale deck during the split-weighing operation;

6.A statement in the variance permit request agreeing to the following procedures to be observed during the split-weighing operation:

a.Use of the vehicle brakes is prohibited;

b.The vehicle transmission must be in neutral; and

c.Chocking of the vehicle's wheels should be discouraged; and

7.For an operator of a motor truck or motor truck dump scale installed after April 1, 1995, a temporary variance permit will be issued only if the operator has substantiated that it is unable to install a scale of sufficient length to allow single-draft weighing due to economic hardship. If the operator chooses to pursue the plea of economic hardship, then the operator's split-weigh variance permit request must also include a plan for compliance over a period not to exceed five years.

History

• History: Effective August 1, 1993; amended effective September 1, 1994; February 1, 1996; July 1, 1997; July 1, 2008; January 1, 2021. 69-10-01-04.2. Split-weigh variance permit requests.
• History: Effective February 1, 1996; amended effective July 1, 1997; July 1, 2008; January 1, 2021.
• Law Implemented: NDCC 64-02-02, 64-02-04

N.D. Admin. Code 69-10-01-05 Rejected devices

Once a weighing or measuring device has been rejected, the device may not be used in commerce. A device that is rejected for repair must be modified or repaired by a registered service person within thirty days of the date it was rejected. The commission may install a security seal on the device to prevent its use until the device has been retested and certified or a variance permit has been granted.

An inactive commercial weighing or measuring device unused or tagged "not sealed" for longer than one year, must meet all current state laws and rules before it may be retested and certified, unless the operator receives a variance permit allowing for the use of the device.

History

• History: Amended effective April 1, 1992; September 1, 1994; July 1, 2008; January 1, 2021. 69-10-01-05.1. Inactive weighing or measuring devices.
• History: Effective September 1, 1994; amended effective July 1, 1997; July 1, 2008.
• General Authority: NDCC 28-32-02, 64-02-03
• Law Implemented: NDCC 64-02-02, 64-02-04

N.D. Admin. Code 69-10-01-06 Liquefied petroleum gas meters

Repealed effective April 1, 1992. 69-10-01-06.1. Liquefied petroleum gas meters - Temperature compensation.

All sales of liquefied petroleum gas in a liquid state must be made through a meter having an automatic temperature compensator. The compensator must be connected, operable, and in use at all times.

History

• History: Effective February 1, 1996; amended effective January 1, 2021.
• Law Implemented: NDCC 64-02-02, 64-02-03

N.D. Admin. Code 69-10-01-07 Sale of liquid fuels on other than gross volume basis prohibited

Repealed effective July 1, 2008.

N.D. Admin. Code 69-10-01-08 Assisting inspector

When requested, the owner or operator of any commercial weighing or measuring device shall supply access and assistance to a weights and measures inspector in movement of the test weights to and from and on and off the scale for testing purposes, or for returning liquids to aboveground or belowground storage tanks. Failure to provide inspector access and assistance in a timely manner may be grounds for sealing the device as a "noncommercial device".

History

• History: Effective August 1, 1993; amended effective September 1, 1994; February 1, 1996; January 1, 2021.

N.D. Admin. Code 69-10-01-09 Bulk liquid fuel meters

Repealed effective August 1, 2000. 69-10-01-09.1. Bulk liquid fuel meters - Retail sales.

Meters designed for bulk loading use may not be used for retail fuel sales without first obtaining a variance from the commission, which may be granted for no longer than six months. 69-10-01-09.2. Bulk liquid fuel meters - Marking.

A bulk liquid fuel meter used in commerce and not marked from the manufacturer with the liquid to be measured must be sealed with a tag indicating the product for which the meter is designed to deliver, or the liquid used to certify the meter if other than the design liquid. 69-10-01-09.3. Bulk liquid fuel meters - Design use.

A bulk liquid fuel meter may not be used for the commercial delivery of any liquid fuel that is not substantially similar in physical properties to the liquid fuel for which it was designed, tested, and certified.

N.D. Admin. Code 69-10-01-10 Examination of records

The commission may obtain copies of, and examine any weigh ticket, weigh receipt, meter printer ticket, or any other record of sale resulting from the operation of any commercial weighing or measuring device.

A record of a sale such as a weigh ticket, weigh receipt, meter printer ticket, or any other record resulting from the operation of any commercial weighing or measuring device must be maintained on file at the place of sale for a period of not less than two years from the date of sale.

History

• History: Effective August 1, 1993. 69-10-01-10.1. Retention of records.
• History: Effective July 1, 1998.

N.D. Admin. Code 69-10-01-11 Device adjustments

Weights and measures inspectors may not make adjustments to a commercial weighing or measuring device other than to zero a device or adjust the level on certain counter, dormant, and platform scales.

History

• History: Effective September 1, 1994; amended effective July 1, 1997; November 1, 2003; January 1, 2021.

N.D. Admin. Code 69-10-01-12 Sale of anhydrous ammonia

The sale of anhydrous ammonia after January 1, 1999, on any basis other than by certified scale or certified meter by any new or newly expanded anhydrous ammonia dealer is prohibited.

History

• History: Effective July 1, 1997.

N.D. Admin. Code 69-10-01-13 Enforcement

An operator of a commercial weighing and measuring device shall ensure that the device is designed, constructed, operated, and maintained to meet applicable standards in the North Dakota Century Code and the North Dakota Administrative Code. The commission may require proof of compliance. The commission may file a complaint for noncompliance, and, in addition to other appropriate sanctions, assess civil penalties under North Dakota Century Code chapter 49-07 after notice and opportunity for hearing on the complaint.

History

• History: Effective May 1, 2005; amended effective July 1, 2008; January 1, 2021.
• General Authority: NDCC 49-07, 64-02-03

N.D. Admin. Code 69-10-01-14 Inspection and testing accessibility

A commercial weighing or measuring device must be installed so that it is easily accessible for inspection and testing.

History

• History: Effective May 1, 2005.

N.D. Admin. Code 69-10-01-15 Devices removed from service

When a commercial weighing or measuring device is removed from service, a weights and measures inspector shall affix a noncommercial device seal to the device. A device that is sealed as a "noncommercial device" must not be used in commerce. A registered service person shall notify the commission in writing within seven working days when a device is removed from commercial service.

History

• History: Effective May 1, 2005; amended effective January 1, 2021.

N.D. Admin. Code 69-10-01-16 Service contracts

Registered service companies shall notify the commission of any service contract that provides for annual certification of a commercial device. Notification must be given no later than thirty days from the date of the verbal or written contract. Commercial devices under service contract that have not been tested within twelve months may be scheduled for testing by the commission.

History

• History: Effective May 1, 2005; amended effective July 1, 2008.

N.D. Admin. Code 69-10-01-17 Manufacturer design deviations and limitations

Deviations from the manufacturer's design, installation specifications, intended application, or established limits applicable to any commercial weighing or measuring device are not permitted without approval from the manufacturer's engineering authority and a variance permit granted by the commission.

History

• History: Effective July 1, 2008.

Chapter 69-10-02 Scales

N.D. Admin. Code 69-10-02-01 Livestock scales - Specifications

A commercial livestock scale must be equipped with a type registering print device, and the value of the minimum graduated interval must not be greater than five pounds [2.27 kilograms], provided, however, that for scale capacities in excess of fifty thousand pounds [22679.6 kilograms] the scale may indicate and record in ten-pound [4.54-kilogram] divisions. A scale rack on a livestock scale must be securely mounted on the scale platform, with adequate clearance between the outside of the rack and other obstructions. The steel yard or beam rod must be connected directly to the transverse lever.

History

• History: Amended effective July 1, 1997.

N.D. Admin. Code 69-10-02-02 Livestock scales - Installation

All livestock scales must be installed so as to permit ready access for large capacity testing equipment. At the one end of a livestock scale there must be a straight concrete approach the full width of the scale platform, in the same plane as the scale platform and equal in length to the width of the scale platform in order to provide a clean and level area for the purpose of unloading test weights used in testing the scale. Provisions must be made to allow the test truck to back up to the approach by providing an entrance of adequate height and width to enable the test truck to be reasonably level when weights are unloaded. A livestock scale newly constructed after July 1, 1993, must have a minimum entrance and approach width and height of twelve feet [3.66 meters].

A livestock ring scale constructed after January 1, 1998, must have an approach that is level with the scale platform and at least twenty-eight feet [8.53 meters] in length and ten feet [3.05 meters] in width.

All livestock scales under the jurisdiction of the federal packers and stockyards administration must be certified once every six months. A scale must be certified by a registered service person.

History

• History: Amended effective August 1, 1993; July 1, 1997. 69-10-02-02.1. Livestock scales - Certification.
• History: Effective August 1, 1993; amended effective January 1, 2021.

N.D. Admin. Code 69-10-02-03 Twister head extensions

The twister head extensions cannot be used under any conditions in the installation of motor truck, motor truck dump, or livestock scales. Extension levers used on motor truck, livestock, or motor dump truck scales must be securely anchored to or suspended from concrete of the neck or walls of the scale pit.

History

• History: Amended effective August 1, 1993.

N.D. Admin. Code 69-10-02-04 Steel yard rod

The steel yard rod connecting the weighbeam to the transverse lever on all scales must be installed or shielded to prevent interference.

N.D. Admin. Code 69-10-02-05 Portable pitless scales and portable hopper scales

A self-contained portable pitless scale and a self-contained portable hopper scale used solely to weigh materials used for government highway construction are exempt from the provisions of this

article. Installation and operation of a self-contained portable pitless scale and a self-contained portable hopper scale for commercial use without a variance permit from the commission is prohibited.

July 1, 1997; July 1, 2008. 69-10-02-05.1. Fixed pitless scales - Foundation.

A fixed pitless scale foundation may be either a pier foundation or floating slab foundation and installed as follows:

1.A pier foundation must:

a.Maintain at least ten inches [254 millimeters] of clearance between the "I" beam and the slab along the entire length and width of the scale;

b.Have piers that extend below the frostline;

c.Be installed to manufacturer's specifications to support the device, prevent shifting, and provide protection from the environment;

d.Include a reinforced concrete washout slab poured independently of the load bearing piers, a minimum four inches [101.6 millimeters] thick, poured underneath the entire length and width of the scale; and

e.Be installed to ensure that surface water will drain away from the scale area.

2.A concrete floating slab foundation must:

a.Maintain at least ten inches [254 millimeters] of clearance between the "I" beam and the slab along the entire length and width of the scale;

b.Be constructed on soil that has a uniform natural or engineered soil bearing of at least one thousand five hundred pounds per square foot [71.82 kilopascals];

c.Be supported on a monolithic, steel-reinforced, concrete slab a minimum of twelve inches [304.8 millimeters] thick poured on top of a base of uniform, compacted, permeable aggregate, at least twenty-four inches [609.6 millimeters] deep;

d.Be installed to manufacturer's specifications to support the device, prevent shifting, and provide protection from the environment; and

e.Be installed with the top surface of the foundation slab above the surrounding grade level so that water will flow away from the foundation and away from the permeable aggregate base that supports the foundation.

History

• History: Amended effective April 1, 1984; August 1, 1993; September 1, 1994; February 1, 1996;
• History: Effective August 1, 1993; amended effective September 1, 1994; February 1, 1996; January 1, 2021.

N.D. Admin. Code 69-10-02-06 Clearances - Drainage - Pit entrances

Motor truck, motor truck dump, railway track, and livestock scales, other than fixed pitless scales, regardless of capacity, must have a clearance of not less than four feet [12.19 decimeters] from the finished floorline of the scale pit to the bottom of the "I" beam of the scale bridge. A five-eighths-inch [15.88-millimeter] clearance must be provided between the live deck and the pit coping. A "crushing strip" or "rock guard" must be installed in the event a concrete deck is installed on a scale; wood decks must be undercut around deck to prevent foreign material from lodging between deck and coping.

Scale pits must be kept reasonably clean and dry at all times, and adequate drainage must be provided. Convenient entrances to the scale pit must be provided for the purpose of inspecting and cleaning.

History

• History: Amended effective August 1, 1993; September 1, 1994; January 1, 2021.

N.D. Admin. Code 69-10-02-07 Foundation and supports

The foundation and supports of any scale installed in a fixed position must consist of reinforced concrete of sufficient strength to ensure rigidity and permanence. The fulcrum stands for the levers or the load cells of large capacity scales must be installed on level piers with a minimum of grouting. All footings must be of adequate depth to extend below the frostline.

History

• History: Amended effective August 1, 1993; January 1, 2021.

N.D. Admin. Code 69-10-02-08 Deviations from manufacturer's design

Repealed effective July 1, 2008.

N.D. Admin. Code 69-10-02-09 Deck lengths

1.A motor truck or motor truck dump scale installed and operational before January 1, 1995, must have at least twelve feet [3.66 meters] or a distance equal to one-third of deck length, whichever is greater, of straight driveway on either end of the scale deck not over one-third inch [8.47 millimeters] per foot [30.48 centimeters] out of level with the platform. The first twelve feet [3.66 meters] from the scale must be of a hard surface (concrete or asphalt). An inside scale must measure a minimum of four feet [1.22 meters] of metal, wood, asphalt, or reinforced concrete between the scale deck and the inside of the doorsill at both ends of the scale.

2.A motor truck or motor truck dump scale installed on or after January 1, 1995, must have at least twelve feet [3.66 meters] or a distance equal to one-third of deck length, whichever is greater, of straight approaches beginning in a level plane with the surface of the scale deck.

The slope of the approaches away from the scale deck may not exceed one-third inch [8.47 millimeters] per foot [30.48 centimeters]. The first twelve feet [3.66 meters] of approach from the scale must be of metal or concrete. An inside scale must measure a minimum of five feet [1.52 meters] of reinforced concrete between the scale deck and the inside of the doorsill at both ends of the scale. However, grating of sufficient strength to withstand all loads equal to the concentrated load capacity of the scale may be installed on either end of that inside scale.

History

• History: Amended effective September 1, 1994; February 1, 1996.

N.D. Admin. Code 69-10-02-10 Indicating and printing elements

A beam-type or dial-type indicating element must be installed in a level and plumb position, mounted on concrete piers, or on a concrete slab, and fastened securely to the concrete walls or neck of the scale pit. These mechanical indicating element foundations must be independent of the scalehouse floor, weighing room, or other similar structures. The installation of a dial must allow for adequate clearance for service between the cabinet of the dial and the wall. Motor truck, motor truck dump, railroad track, and livestock scales installed after July 1, 1973, and used in commerce, must be equipped with a ticket printing device with a copy of the printed receipt issued to the customer at the time of the delivery. Notwithstanding the above, for a scale installed prior to July 1, 1973, equipped with any type of ticket printing capability, its operator must use that ticket printing capability for all sales, with a copy of the printed ticket to be issued to the customer at the time of the delivery. A shoulder or stop must be provided on each weighbeam bar to prevent the poise from traveling and remaining behind the zero graduation. An indicating or printing element must be adequately protected against environmental damage.

History

• History: Amended effective August 1, 1993; September 1, 1994; February 1, 1996; July 1, 1997.

N.D. Admin. Code 69-10-02-11 Limits established by factory-rated scale capacity

Repealed effective July 1, 2008.

N.D. Admin. Code 69-10-02-12 Observation windows, video cameras, or photoelectric eyes

1.Windows must be provided and must be located in such a position and manner so that the scale operator has full view of the scale platform and weighing operation, including the front, back, and one side of the vehicle being weighed from the scale operator's working position, and that the weighman and indicating elements are clearly visible to interested parties.

2.Video cameras may be substituted for windows if the substitution does not diminish the view for either the scale operator or other interested parties. However, installations that exceed two hundred feet [61 meters] from the main indicating element must be equipped with two-way audio communication and remote or video display of weight indication.

3.Photoelectric eyes or similar devices that are electronically interlocked with the weighing system and positioned such that a vehicle must be entirely on or off a scale prior to a weight being recorded, may be used for unattended scale applications. If the photoelectric eye or similar device is the sole source for vehicle placement verification and is not operational, the scale may not be used.

History

• History: Amended effective August 1, 1993; September 1, 1994; July 1, 2008; January 1, 2021.

N.D. Admin. Code 69-10-02-13 Inspection and testing accessibility

Repealed effective May 1, 2005.

N.D. Admin. Code 69-10-02-14 Assisting inspector

Repealed effective August 1, 1993.

N.D. Admin. Code 69-10-02-15 Counter computing scales

Repealed effective August 1, 2000.

N.D. Admin. Code 69-10-02-16 Automatic bulk-loading systems - Receiving

A commercial automatic bulk-loading system used for receiving grain may not be commercially operated without first receiving a variance permit from the commission. Before receiving any grain through an automatic bulk-weighing system, a certified commercial truck scale must be made available to the seller for optional check weighing.

History

• History: Effective September 1, 1994; amended effective July 1, 2008.

N.D. Admin. Code 69-10-02-17 Coal belt conveyor scales jurisdictional - Exemption

Coal belt conveyor scales not used for coal sales to the general public, or not used for the sale of coal on behalf of leasehold interests, are exempt from the provisions of this article.

History

• History: Effective September 1, 1994; amended effective January 1, 2002.
• Law Implemented: NDCC 64-02-02, 64-03-07

N.D. Admin. Code 69-10-02-18 Concrete hopper scales - Exemption

A concrete hopper scale that is used for measuring a finished concrete product that is sold by a measurement other than weight, even though the quality of its composition (cement, sand, aggregate, and water) is determined by weight, shall be defined as a "batching scale" and is exempt from the provisions of this article.

Grain moisture testing meters, jewelers' scales, prescription scales, and postal scales used by the United States postal service, including scales at a location identified as a contract postal unit, are exempt from the provisions of this article.

History

• History: Effective September 1, 1994; amended effective January 1, 2021. 69-10-02-18.1. Exemptions from testing.
• History: Effective January 1, 2002; amended effective January 1, 2021.

N.D. Admin. Code 69-10-02-19 Single-draft weighing - Exceptions

It is unlawful to weigh a vehicle or a combination vehicle in any method other than the single-draft method, as outlined in the NIST Handbook No. 44, section 2.20. scales, UR.3.3., Single-draft Vehicle Weighing, except for the following:

1.When the sale of the commodity being weighed is determined by destination weight;

2.For a motor truck or motor truck dump scale installed prior to April 1, 1965; or

3.For a motor truck or motor truck dump scale installed after April 1, 1965, provided a split-weigh variance permit has first been granted by the commission under section 69-10-01-04.2, and the parties involved have complied with section 69-10-02-20 prior to split-weighing.

History

• History: Effective February 1, 1996; amended effective August 1, 2000; July 1, 2008; January 1, 2021.

N.D. Admin. Code 69-10-02-20 Split-weigh agreements

Upon approval by the commission of a variance permit allowing split-weighing, and before an individual customer is split-weighed, an approved split-weigh agreement form must be signed by both the business and that customer, and kept on file at the place where the split-weighing occurs.

History

• History: Effective February 1, 1996; amended effective July 1, 2008.

N.D. Admin. Code 69-10-02-21 Shift test - Load-bearing and section testing

After January 1, 1996, all motor truck, motor truck dump, and railroad track/truck combination scales must be load-bearing and section tested. The load-bearing test must be conducted with a minimum standard of the lesser value of either ten thousand pounds [4535.9 kilograms] or one-quarter the device capacity in test weights, with the test weights centered, as nearly as possible, successively over each main load support. Section testing must be conducted with a minimum standard of either twenty thousand pounds [9071.8 kilograms] or one-half the device capacity in test weights, with the test weights centered, as nearly as possible, successively at the center of each quarter of the load receiving element. Applicable tolerances from NIST Handbook No. 44, scale section, T.N.3.1. and T.N.3.2., must be applied to the amount of test load used.

History

• History: Effective February 1, 1996; amended effective January 1, 2021.

N.D. Admin. Code 69-10-02-22 Sensitivity response

The sensitivity response of a motor truck or motor truck dump scale designed with a division size of five pounds [2.27 kilograms] and without a balance indicator may not exceed four scale divisions.

History

• History: Effective October 1, 1999.

N.D. Admin. Code 69-10-02-23 Stored tare weight

A stored tare weight across a motor truck or motor truck dump scale may not be used for more than one commercial transaction.

History

• History: Effective January 1, 2002.

N.D. Admin. Code 69-10-02-24 Electronic scale data storage and retrieval

Computer programming installed on commercial scales after January 1, 2002, enabling the electronic recording or storage of scale weight must conform to the following:

1.If more than one scale is interfaced, the system must store the identity of the scale which originated the weight and all printed data must identify the scale which originated the weight;

2.Any weight which is manually entered must be identified as manually entered on all recorded weights;

3.All recorded weights must match actual scale-weight indications;

4.All recalled weights must match stored weights;

5.Stored weight must have a recorded audit trail on a dedicated line printer in a continuous format which includes an "S" indicating that it is a stored weight; a sequential reference number; a scale identifier number; a unique reference number to enable the recall of that stored weight; and the stored weight;

6.Any stored weight which is recalled must be immediately printed on a scale ticket with the following information: an "R" indicating that it is a recalled weight; the unique reference number identified in subsection 5; and the recalled weight;

7.After the transaction is completed, the recalled weight must be automatically deleted from the recalled weights data file;

8.Computer computations such as rounding off and truncation must be programmed so that the computations do not result in the degradation of the accuracy of the scale tolerance by more than one-half of one scale division; and

9.Programming must ensure all essential data is properly entered and stored before issuing a weight ticket.

History

• History: Effective January 1, 2002; amended effective May 1, 2005; July 1, 2008.

N.D. Admin. Code 69-10-02-25 Law enforcement scales - Exemption

Axle load scales or portable wheel load scales used to enforce load limit restrictions are exempt from the provisions of this article.

History

• History: Effective May 1, 2005; amended effective July 1, 2008; January 1, 2021.

N.D. Admin. Code 69-10-02-26 Hoppers scale design requirements

The owner of a commercial hopper scale shall provide a bracket or lifting arms able to utilize a hand-operated chain hoist that will facilitate testing with five hundred pounds [226.80 kilograms] or larger test weights. The brackets or lifting arms must be of sufficient strength for the intended load and permanently and legibly marked with a maximum load rating.

All commercial hopper scales, newly constructed and placed into service after the effective date of this rule, must have a minimum of three feet [.91 meter] of unobstructed clearance on all four sides to facilitate testing with large weights.

Notwithstanding the provisions of this section, automatic bulk-weighing systems with integral standards, overhead hopper scales accessible underneath, and hopper scales with capacities of five thousand pounds [2267.96 kilograms] or less are exempt from this requirement.

History

• History: Effective July 1, 2008.

N.D. Admin. Code 69-10-02-27 Medical marijuana scales - Requirements

Scales used in the packaging and sale of medical marijuana in quantities of one ounce [28.35 grams] or less must be an NTEP class I or II scale with a scale verification division of one onehundredths of a gram or less.

History

• History: Effective January 1, 2021.

Chapter 69-10-03 Standards

N.D. Admin. Code 69-10-03-01 National institute of standards and technology (NIST) Handbook No. 44

Except as modified in this article, the specifications, tolerances, tests, and other technical requirements for commercial weighing and measuring devices in North Dakota must conform to the following sections and subsections of the 2020 edition of the United States department of commerce, NIST Handbook No. 44, which is adopted by reference: all of section 1, section 2 (except subsection 2.245), all of section 3 (except subsections 3.34, 3.36, 3.38, and 3.39). In the event of a conflict between the NIST Handbook No. 44 and North Dakota laws and rules, North Dakota laws and rules shall prevail. Copies of the handbook may be obtained from:

September 1, 1994; February 1, 1996; July 1, 1997; July 1, 1998; October 1, 1999; August 1, 2000;

January 1, 2002; May 1, 2005; January 1, 2021.

National type evaluation program certification is required for design, sale, installation, operation, and certification of a commercial weighing and measuring device. A commercial weighing and measuring device used in commerce prior to January 1, 2021, is exempt from national type evaluation program requirements provided the device is certified in accordance with section 69-10-01-02.3.

The specifications, tolerances, and other technical requirements for reference standards and field standards used for testing commercial weighing and measuring devices in North Dakota must conform to the sections and subsections of the 2019 edition of the United States department of commerce, NIST Handbook No. 105-1, which is adopted by reference. In the event of a conflict, North Dakota laws and other administrative rules shall prevail. Copies of the handbook may be obtained from:

The specifications, tolerances, and other technical requirements for reference standards and field standards used for testing commercial measuring devices in North Dakota must conform to the sections and subsections of the 2010 edition of the United States department of commerce, NIST Handbook No. 105-3, which is adopted by reference. In the event of a conflict, North Dakota laws and other administrative rules shall prevail. Copies of the handbook may be obtained from:

The specifications, tolerances, and other technical requirements for reference standards and field standards used for testing commercial liquefied petroleum gas and anhydrous ammonia liquid measuring devices in North Dakota must conform to the sections and subsections of the 2016 edition of the United States department of commerce, NIST Handbook No. 105-4, which is adopted by reference.

In the event of a conflict, North Dakota laws and other administrative rules shall prevail. Copies of the handbook may be obtained from:

The specifications, tolerances, and other technical requirements for reference standards and field standards used for testing commercial manufacturers and distributors of liquid products, research and testing laboratories, and others concerned with accurate measurements of the volume of liquids in North Dakota must conform to the sections and subsections of the 1996 edition of the United States department of commerce, NIST Handbook No. 105-2, which is adopted by reference. In the event of a conflict, North Dakota laws and other administrative rules shall prevail. Copies of the handbook may be obtained from: 69-10-03-01.6. National institute of standards and technology (NIST) Handbook No. 105-7 - Specifications and tolerances for reference standards and field standard weights and measures - Specifications and tolerances for dynamic small-volume provers.

The specifications, tolerances, and other technical requirements for reference standards and field standards used for testing or verification of commercial liquid measurement devices in an operational line for compliance with the requirements of commercial device requirements without interrupting normal process flow in North Dakota must conform to the sections and subsections of the 1997 edition of the United States department of commerce, NIST Handbook No. 105-7, which is adopted by reference. In the event of a conflict, North Dakota laws and other administrative rules shall prevail.

Copies of the handbook may be obtained from: 69-10-03-01.7. National institute of standards and technology (NIST) Handbook No. 105-8 - Specifications and tolerances for reference standards and field standard weights and measures - Specifications and tolerances for field standard weight carts.

The specifications, tolerances, and other technical requirements for reference standards and field standard weight carts used for testing commercial weighing devices in North Dakota must conform to the sections and subsections of the 2019 edition of the United States department of commerce, NIST Handbook No. 105-8, which is adopted by reference. In the event of a conflict, North Dakota laws and other administrative rules shall prevail. Copies of the handbook may be obtained from:

History

• History: Amended effective October 1, 1988; December 1, 1990; February 1, 1992; August 1, 1993;
• Law Implemented: NDCC 64-02-07 69-10-03-01.1. National institute of standards and technology (NIST) Handbook No. 44.
• History: Effective January 1, 2002; amended effective January 1, 2021.
• Law Implemented: NDCC 64-02-02 69-10-03-01.2. National institute of standards and technology (NIST) Handbook No. 105-1 - Specifications and tolerances for reference standards and field standard weights and measures - Specifications and tolerances for class f field standard weights.
• History: Effective March 1, 2003 amended effective January 1, 2021. 69-10-03-01.3. National institute of standards and technology (NIST) Handbook No. 105-3 - Specifications and tolerances for reference standards and field standard weights and measures - Specifications and tolerances for graduated neck-type volumetric field standards.
• History: Effective March 1, 2003; amended effective January 1, 2021. 69-10-03-01.4. National institute of standards and technology (NIST) Handbook No. 105-4 - Specifications and tolerances for reference standards and field standard weights and measures - Specifications and tolerances for liquefied petroleum gas and anhydrous ammonia liquid volumetric provers.
• History: Effective March 1, 2003; amended effective January 1, 2021. 69-10-03-01.5. National institute of standards and technology (NIST) Handbook No. 105-2 - Specifications and tolerances for reference standards and field standard weights and measures - Specifications and tolerances for field standard measuring flasks.

N.D. Admin. Code 69-10-03-02 Adequate standards

A standard used to certify any commercial weighing and measuring device must be annually certified as traceable by an NIST-recognized metrology laboratory. The commission may extend the recertification interval an additional ninety days provided that the request is made thirty days before the certification expires.

A current legible copy of the certificate of traceability must be maintained with the commission.

Annual recertification is subject to the following exceptions and conditions:

1.Standards integral to and used for recertification of a commercial automatic bulk-weighing system must be certified traceable by an NIST-recognized laboratory at least once every five years.

2.Volumetric graduated neck and dynamic small volume provers used to certify commercial loading-rack, processing plant, or refinery meters used for petroleum-based products must be certified traceable by an NIST-recognized laboratory at least once every three years.

3.Unless otherwise approved by the commission, the operator of a coal belt conveyor scale jurisdictional to the commission must conduct a material load test at least once every two years provided that electronic or other simulated load testing is done at least once every three months.

4.A master meter may not be used as a standard to certify commercial liquid petroleum gas devices.

5.Notwithstanding the other provisions of this section, the commission may require recertification of any standard if upon inspection the physical condition of a standard indicates a need for recertification.

History

• History: Amended effective April 1, 1992; September 1, 1994; February 1, 1996; July 1, 1997; July 1, 2008; October 1, 2010; January 1, 2021.
• Law Implemented: NDCC 64-02-02, 64-02-13

N.D. Admin. Code 69-10-03-03 Master test weights and prover tanks

Repealed effective April 1, 1992.

N.D. Admin. Code 69-10-03-04 Enforcement

Repealed effective May 1, 2005.

N.D. Admin. Code 69-10-03-05 Weight carts

N.D. Admin. Code 69-10-03-06 Metrology service

N.D. Admin. Code 69-10-03-07 Delivery of standards for certification

N.D. Admin. Code 69-10-03-08 Rejection of standards

Standards rejected by a NIST-recognized laboratory must be removed from service as follows:

1.A standard that has been rejected must be conspicuously marked by sealing, tagging, or painting as appropriate to that standard.

2.A rejected standard may not be used to test and certify a commercial weighing and measuring device. The use of a rejected standard may result in commission enforcement action.

3.A standard not meeting appropriate design criteria may be allowed to remain in service for a limited time, provided a variance permit is obtained from the commission prior to certification or recertification.

History

• History: Effective May 1, 2005; amended effective July 1, 2008; October 1, 2010.
• Law Implemented: NDCC 64-02-02

Chapter 69-10-04 Service Regulations

N.D. Admin. Code 69-10-04-01 Registered service persons - Privileges and responsibilities

A registered service person shall have the authority to remove an official rejection seal, equipment repair notice tag, noncommercial device seal, device certification seal, or other mark placed on a weighing or measuring device by the authority of the commission. Furthermore, a registered service person has the authority to certify weighing or measuring devices described in North Dakota Century Code section 64-02-13.

A registered service person is responsible for installing, repairing, and adjusting devices such that the devices are adjusted as closely as practicable to zero error.

A registered service company has the authority to maintain state-certified field standards and to employ a registered service person to design, install, and repair a commercial weighing or measuring device as described in North Dakota Century Code section 64-02-13.

History

• History: Amended effective April 1, 1992; September 1, 1994; July 1, 1997; January 1, 2021. 69-10-04-01.1. Registered service companies - Privileges and responsibilities.
• History: Effective July 1, 1998; amended effective January 1, 2021.

N.D. Admin. Code 69-10-04-02 Application for registration and permitting of a service person

An applicant must be employed by a currently permitted registered serviced company to be eligible for permitting as a registered service person. Annual application for registration as a registered service person must be submitted to the commission under the following requirements:

1.A first-time applicant or an applicant whose permit has been expired more than two years shall:

a.Submit a complete application for registration as a registered service person on the form prescribed by the commission. The form must include certification that the applicant is fully qualified to install, service, repair, recondition, test, and certify the device types for which permitting is being requested;

b.Provide a history of education or work experience to show that the applicant is fully qualified to install, service, repair, recondition, test, and certify a commercial weighing or measuring device on the form provided by the commission. Applicants may only qualify to test devices for which they have met the education and work history requirements.

Education and work history requirements include:

(1)Sixty days of on the job training directly related to the installation, maintenance, repair, and calibration of all device types the applicant will be certifying or placing into service; or (2)Satisfactorily completed a manufacturer's in-depth training course covering the installation, maintenance, repair, and calibration of each device type the applicant will be certifying or placing into service. Proof of course completion is required; or (3)Holding a certification from another state as a registered service person, for at least sixty days, with authority to certify or place weighing or measuring devices into service. Proof of current certification must be provided.

c.Complete written tests that must be taken at a location and time designated by the commission, and must be administered as follows:

(1)The written test will be open book, with eighty percent as the minimum passing score. The test material will cover the applicable sections of the adopted edition of NIST Handbook No. 44, North Dakota Century Code title 64, and North Dakota Administrative Code article 69-10; and (2)In the case of a test failure, an applicant may retake the tests after a review period of ten working days.

2.Each applicant registered by the commission shall utilize adequate standards during the testing and certification of a commercial device as provided in this chapter.

3.An applicant who is applying for renewal of an existing registration shall complete and submit the application at least thirty days prior to the expiration date of the applicant's existing registration.

Self-certification to repair, test, and certify an operator's own commercial weighing and measuring devices is permitted only as provided in this section:

1.Only hazardous liquid pipeline operators, natural gas pipeline operators, and manufacturing-processing operators may self-certify;

2.Applications must be submitted to the commission in writing;

3.Commission approval is required annually; and

4.Applications must address the following conditions:

a.The person doing the self-certification must be registered with the commission under

section 69-10-04-02.

b.Upon testing, the device must be within commission-approved tolerance.

c.Whenever a weighing or measuring device is recertified, the person or company recertifying that device shall, within seven working days, report the recertification to the commission. The report must clearly identify each device, the initial test results recorded during self-certification, and the test results upon recertification.

d.A weights and measures inspector may randomly recertify any self-certified weighing or measuring device either by performing a test or by witnessing a test performed by a self-certified service person.

January 1, 2002; May 1, 2005; January 1, 2021. 69-10-04-02.2. Application for registration of a service company.

1.An annual application for registration as a registered service company must be filed with the commission prior to conducting any service work on commercial weighing or measuring devices and must include:

a.Acceptable evidence that all of the service standards used to test and approve commercial weighing or measuring devices have been certified under section 69-10-03-02;

b.A copy of the company's standardized report form as required by section 69-10-04-05;

c.A sample of the company's "tested and approved" sticker and internal seals, certification seal, and security seals, as required by section 69-10-01-03; and

d.An application for registration.

2.Upon acceptance and approval of an application, the commission will issue the service company an annual permit as a registered service company.

Upon acceptance and approval of an application, the commission shall issue a placing in service permit to the registered service person. All permits issued under this section remain the property of the commission and must be surrendered upon demand. Permits issued will be either probationary or annual as defined in this section. Permits must be carried at all times while conducting weighting or measuring device servicing or certification and must be produced upon request.

1.Probationary permits.

a.An annual permitholder's permit may be downgraded to probationary for not performing proper tests and inspections or other violations deemed relevant by the commission;

b.The duration of the probationary permit will be at the discretion of the commission but will not exceed six months from the effective date; and

c.A probationary permitholder shall be accompanied by, and have each placing in service test report cosigned by, an annual permitholder from the same service company and qualified in the same weighing or measuring device category in order for the test report or the placing in service to be considered valid.

2.Annual permits.

a.An applicant who has met the work history or experience requirements of a registered service person and satisfactorily completed all required tests will receive an annual permit;

b.An applicant who has previously held an annual permit by the commission within the last two years, but has allowed it to expire, is eligible for permit reinstatement; and

c.A probationary permitholder who has completed probationary time or requirements without receiving any quality assurance failures will receive an annual permit.

History

• History: Amended effective April 1, 1992; September 1, 1994; July 1, 1997; January 1, 2002; May 1, 2005; July 1, 2008; October 1, 2010; January 1, 2021. 69-10-04-02.1. Self-certification.
• History: Effective April 1, 1992; amended effective August 1, 1993; September 1, 1994; July 1, 1997;
• History: Effective July 1, 1998; amended effective May 1, 2005; January 1, 2021. 69-10-04-02.3. Placing in service permits.
• History: Effective May 1, 2005; amended effective October 1, 2010; January 1, 2021.

N.D. Admin. Code 69-10-04-03 Revocation of permit - Service company and service person

The commission may, for good cause, suspend or revoke a registered service person's permit or a registered service company's permit. A person or a company not registered with the commission but qualified to install a commercial weighing or measuring device may install but may not place in service, service, repair, or recondition a commercial weighing or measuring device without a variance permit from the commission.

January 1, 2021.

History

• History: Amended effective April 1, 1992; July 1, 1997; July 1, 1998; October 1, 1999; July 1, 2008;

N.D. Admin. Code 69-10-04-04 Reports

A registered service person must, within seven working days, send a test report on all commercial weighing or measuring devices certified, recertified, serviced, or inspected and tested by the person to the commission, and shall furnish a copy of the test report to the owner or operator of the device.

History

• History: Amended effective April 1, 1992; August 1, 1993; September 1, 1994; July 1, 1997.

N.D. Admin. Code 69-10-04-05 Standardized report forms

All test report forms filed with the commission must be in a commission-approved format. Failure to file a test report in a commission-approved format may result in the rejection of the report.

History

• History: Effective August 1, 1993; amended effective February 1, 1996; October 1, 1999; January 1, 2021.

N.D. Admin. Code 69-10-04-06 Quality assurance - Evaluation

1.The commission may evaluate the work performed by a registered service person to ensure that the person is performing proper inspections and tests. The evaluation method may be by direct observation or by reinspection of a device previously placed or recertified by a registered service person. The commission may consider the following criteria during the evaluation:

a.The results of previous quality assurance inspections;

b.Complaints filed against a registered service person, and whether those complaints are valid; and

c.Other factors deemed relevant by the commission.

2.A quality assurance inspection ends when the tested device either fails a portion of the inspection or it passes the inspection. When a device fails a quality assurance inspection, the failure will be documented, the device will be rejected, and a followup quality assurance inspection will be conducted as soon as practical. When a device passes a quality assurance inspection, a weights and measures inspector shall affix a quality assurance inspected tag to the device. A quality assurance inspection does not take the place of the annual certification.

Repealed effective October 1, 2010. 69-10-04-06.2. Procedures for evaluating work of registered service persons.

Repealed effective January 1, 2021. 69-10-04-06.3. Quality assurance - Failures.

A quality assurance evaluation test report that discloses a failure must include any alleged violations of North Dakota Century Code title 64, North Dakota Administrative Code title 69, and any applicable sections of the NIST Handbook No. 44, as adopted by reference in section 69-10-03-01. If a registered service person fails three quality assurance inspections within a twelve-month period, the commission may:

1.Issue a written warning requiring remedial action within thirty days from the date of the warning;

2.Require that the registered service person retake the written tests required for licensing under

section 69-10-04-02;

3.Reduce the registered service person's permit status to probationary for up to six months;

4.Suspend the registered service person's permit and assess a civil penalty; or

5.Other actions deemed suitable by the commission.

The results of any quality assurance failures and associated enforcement actions may be sent to the registered service person's employer and to the owner or operator of the affected device.

A quality assurance evaluation report and a record of any associated enforcement action is filed as

part of the overall quality assurance profile of the affected registered service person and must remain

part of that profile for twelve months from the date of the failure.

History

• History: Effective September 1, 1994; amended effective February 1, 1996; October 1, 1999; July 1, 2008; October 1, 2010; January 1, 2021. 69-10-04-06.1. Quality control - Failures.
• History: Effective October 1, 2010; amended effective January 1, 2021.

N.D. Admin. Code 69-10-04-07 Adequate field standard requirements - Exception

All state weights and measures inspectors and registered service companies shall make available minimum test weights and test loads as required by NIST Handbook No. 44, table 4, during tests of commercial weighing devices. However, during highway load restrictions as announced by the North Dakota department of transportation, shift tests, load-bearing tests, and section tests required by

section 69-10-02-21 and NIST Handbook No. 44, table 4, may be performed with a test load of ten thousand pounds [4535.9 kilograms].

History

• History: Effective July 1, 1998.

N.D. Admin. Code 69-10-04-08 Devices taken out of service

Repealed effective May 1, 2005.

Chapter 69-10-05 Oil and Gas Metering Systems [Repealed]

N.D. Admin. Code 69-10-05 Oil and Gas Metering Systems [Repealed]

CHAPTER 69-10-05

OIL AND GAS METERING SYSTEMS [Repealed effective August 1, 1994]

Chapter 69-03

N.D. Admin. Code 69-03

ARTICLE 69-03

MOTOR CARRIER AUTHORITY AND OPERATIONS [Repealed effective May 1, 1996]

Chapter 69-05

N.D. Admin. Code 69-05

ARTICLE 69-05

SURFACE COAL MINING AND RECLAMATION OPERATIONS [Superseded by Article 69-05.1]

Chapter 69-05.1

N.D. Admin. Code 69-05.1

ARTICLE 69-05.1

SURFACE COAL MINING AND RECLAMATION OPERATIONS [Superseded by Article 69-05.2]

Chapter 69-07

N.D. Admin. Code 69-07

ARTICLE 69-07

GRAIN WAREHOUSES, GRAIN BUYERS, AND HAY BUYERS [Repealed effective October 1, 2020]

Chapter 69-08

N.D. Admin. Code 69-08

ARTICLE 69-08

AUCTIONEERS AND AUCTION CLERKS [Repealed effective June 9, 2025]