49-201

49-201. Definitions

In this chapter, unless the context otherwise requires:

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

2. "Aquifer" means a geologic unit that contains sufficient saturated permeable
material to yield usable quantities of water to a well or spring.

3. "Best management practices" means those methods, measures or practices to
prevent or reduce discharges and includes structural and nonstructural controls and
operation and maintenance procedures. Best management practices may be applied before,
during and after discharges to reduce or eliminate the introduction of pollutants into
receiving waters. Economic, institutional and technical factors shall be considered in
developing best management practices.

4. "CERCLA" means the comprehensive environmental response, compensation, and
liability act of 1980, as amended (P.L. 96-510; 94 Stat. 2767; 42 United States Code
sections 9601 through 9657), commonly known as "superfund".

5. "Clean closure" means implementation of all actions specified in a permit, if
any, as closure requirements, as well as elimination, to the greatest degree practicable,
of any reasonable probability of further discharge from the facility and of exceeding
aquifer water quality standards at the applicable point of compliance. Clean closure
also means postclosure monitoring and maintenance are unnecessary to meet the
requirements of this chapter.

6. "Clean water act" means the federal water pollution control act amendments of
1972 (P.L. 92-500; 86 Stat. 816; 33 United States Code sections 1251 through 1376), as
amended.

7. "Closed facility" means:

(a) A facility that ceased operation before January 1, 1986, that is not, on August
13, 1986, engaged in the activity for which the facility was designed and that was
previously operated and for which there is no intent to resume operation.

(b) A facility that has been approved as a clean closure by the director.

(c) A facility at which any postclosure monitoring and maintenance plan,
notifications and approvals required in a permit have been completed.

8. "Concentrated animal feeding operation" means an animal feeding operation that
meets the criteria prescribed in 40 Code of Federal Regulations part 122, appendix B for
determining a concentrated animal feeding operation for purposes of 40 Code of Federal
Regulations sections 122.23 and 122.24, appendix C.

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

10. "Direct reuse" means the beneficial use of reclaimed water for specific purposes
authorized pursuant to section 49-203, subsection A, paragraph 6.

11. "Director" means the director of environmental quality or the director's
designee.

12. "Discharge" means the direct or indirect addition of any pollutant to the waters
of the state from a facility. For purposes of the aquifer protection permit program
prescribed by article 3 of this chapter, discharge means the addition of a pollutant from
a facility either directly to an aquifer or to the land surface or the vadose zone in
such a manner that there is a reasonable probability that the pollutant will reach an
aquifer.

13. "Discharge impact area" means the potential areal extent of pollutant migration,
as projected on the land surface, as the result of a discharge from a facility.

14. "Discharge limitation" means any restriction, prohibition, limitation or
criteria established by the director, through a rule, permit or order, on quantities,
rates, concentrations, combinations, toxicity and characteristics of pollutants.

15. "Environment" means navigable waters, any other surface waters, groundwater,
drinking water supply, land surface or subsurface strata or ambient air, within or
bordering on this state.

16. "Existing facility" means a facility on which construction began before August
13, 1986 and which is neither a new facility nor a closed facility. For the purposes of
this definition, construction on a facility has begun if the facility owner or operator
has either:

(a) Begun, or caused to begin, as part of a continuous on-site construction program
any placement, assembly or installation of a building, structure or equipment.

(b) Entered a binding contractual obligation to purchase a building, structure or
equipment which is intended to be used in its operation within a reasonable
time. Options to purchase or contracts which can be terminated or modified without
substantial loss, and contracts for feasibility engineering and design studies, do not
constitute a contractual obligation for purposes of this definition.

17. "Facility" means any land, building, installation, structure, equipment, device,
conveyance, area, source, activity or practice from which there is, or with reasonable
probability may be, a discharge.

18. "Gray water" means wastewater that has been collected separately from a sewage
flow and that originates from a clothes washer or a bathroom tub, shower or sink but that
does not include wastewater from a kitchen sink, dishwasher or toilet.

19. "Hazardous substance" means:

(a) Any substance designated pursuant to sections 311(b)(2)(A) and 307(a) of the
clean water act.

(b) Any element, compound, mixture, solution or substance designated pursuant to
section 102 of CERCLA.

(d) Any hazardous air pollutant listed under section 112 of the federal clean air
act (42 United States Code section 7412).

(e) Any imminently hazardous chemical substance or mixture with respect to which
the administrator has taken action pursuant to section 7 of the federal toxic substances
control act (15 United States Code section 2606).

(f) Any substance which the director, by rule, either designates as a hazardous
substance following the designation of the substance by the administrator under the
authority described in subdivisions (a) through (e) of this paragraph or designates as a
hazardous substance on the basis of a determination that such substance represents an
imminent and substantial endangerment to public health.

20. "Inert material" means broken concrete, asphaltic pavement, manufactured
asbestos-containing products, brick, rock, gravel, sand and soil. Inert material also
includes material that when subjected to a water leach test that is designed to
approximate natural infiltrating waters will not leach substances in concentrations that
exceed numeric aquifer water quality standards established pursuant to section 49-223,
including overburden and wall rock that is not acid generating, taking into consideration
acid neutralization potential, and that has not and will not be subject to mine leaching
operations.

21. "Major modification" means a physical change in an existing facility or a change
in its method of operation that results in a significant increase or adverse alteration
in the characteristics or volume of the pollutants discharged, or the addition of a
process or major piece of production equipment, building or structure that is physically
separated from the existing operation and that causes a discharge, provided that:

(a) A modification to a groundwater protection permit facility as defined in
section 49-241.01, subsection C that would qualify for an area-wide permit pursuant to
section 49-243, subsection P consisting of an activity or structure listed in section
49-241, subsection B shall not constitute a major modification solely because of that
listing.

(b) For a groundwater protection permit facility as defined in section 49-241.01,
subsection C, a physical expansion that is accomplished by lateral accretion or upward
expansion within the pollutant management area of the existing facility or group of
facilities shall not constitute a major modification if the accretion or expansion is
accomplished through sound engineering practice in a manner compatible with existing
facility design, taking into account safety, stability and risk of environmental release.
For a facility described in section 49-241.01, subsection C, paragraph 1, expansion of a
facility shall conform with the terms and conditions of the applicable permit. For a
facility described in section 49-241.01, subsection C, paragraph 2, if the area of the
contemplated expansion is not identified in the notice of disposal, the owner or operator
of the facility shall submit to the director the information required by section 49-243,
subsection A, paragraphs 1, 2, 3 and 7.

22. "Navigable waters" means the waters of the United States as defined by section
502(7) of the clean water act (33 United States Code section 1362(7)).

23. "New facility" means a previously closed facility that resumes operation or a
facility on which construction was begun after August 13, 1986 on a site at which no
other facility is located or to totally replace the process or production equipment that
causes the discharge from an existing facility. A major modification to an existing
facility is deemed a new facility to the extent that the criteria in section 49-243,
subsection B, paragraph 1 can be practicably applied to such modification. For the
purposes of this definition, construction on a facility has begun if the facility owner
or operator has either:

(a) Begun, or caused to begin as part of a continuous on-site construction program,
any placement, assembly or installation of a building, structure or equipment.

24. "Nonpoint source" means any conveyance which is not a point source from which
pollutants are or may be discharged to navigable waters.

25. "On-site wastewater treatment facility" means a conventional septic tank system
or alternative system that is installed at a site to treat and dispose of wastewater of
predominantly human origin that is generated at that site.

26. "Permit" means a written authorization issued by the director or prescribed by
this chapter or in a rule adopted under this chapter stating the conditions and
restrictions governing a discharge or governing the construction, operation or
modification of a facility.

27. "Person" means an individual, employee, officer, managing body, trust, firm,
joint stock company, consortium, public or private corporation, including a government
corporation, partnership, association or state, a political subdivision of this state, a
commission, the United States government or any federal facility, interstate body or
other entity.

28. "Point source" means any discernible, confined and discrete conveyance,
including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding operation or vessel or
other floating craft from which pollutants are or may be discharged to navigable
waters. Point source does not include return flows from irrigated agriculture.

29. "Pollutant" means fluids, contaminants, toxic wastes, toxic pollutants, dredged
spoil, solid waste, substances and chemicals, pesticides, herbicides, fertilizers and
other agricultural chemicals, incinerator residue, sewage, garbage, sewage sludge,
munitions, petroleum products, chemical wastes, biological materials, radioactive
materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and mining,
industrial, municipal and agricultural wastes or any other liquid, solid, gaseous or
hazardous substances.

30. "Postclosure monitoring and maintenance" means those activities that are
conducted after closure notification and that are necessary to:

(a) Keep the facility in compliance with aquifer water quality standards at the
applicable point of compliance.

(b) Verify that the closure design has eliminated discharge to the extent intended.

(d) Meet property use restrictions.

31. "Practicably" means able to be reasonably done from the standpoint of technical
practicability and, except for pollutants addressed in section 49-243, subsection I,
economically achievable on an industry-wide basis.

32. "Reclaimed water" means water that has been treated or processed by a wastewater
treatment plant or an on-site wastewater treatment facility.

33. "Regulated agricultural activity" means the application of nitrogen fertilizer
or a concentrated animal feeding operation.

34. "Safe drinking water act" means the federal safe drinking water act, as amended
(P.L. 93-523; 88 Stat. 1660; 95-190; 91 Stat. 1393).

35. "Standards" means water quality standards, pretreatment standards and toxicity
standards established pursuant to this chapter.

36. "Standards of performance" means performance standards, design standards, best
management practices, technologically based standards and other standards, limitations or
restrictions established by the director by rule or by permit condition.

37. "Tank" means a stationary device, including a sump, that is constructed of
concrete, steel, plastic, fiberglass, or other non-earthen material that provides
substantial structural support, and that is designed to contain an accumulation of solid,
liquid or gaseous materials.

38. "Toxic pollutant" means a substance that will cause significant adverse
reactions if ingested in drinking water. Significant adverse reactions are reactions
that may indicate a tendency of a substance or mixture to cause long lasting or
irreversible damage to human health.

39. "Trade secret" means information to which all of the following apply:

(a) A person has taken reasonable measures to protect from disclosure and the
person intends to continue to take such measures.

(b) The information is not, and has not been, reasonably obtainable without the
person's consent by other persons, other than governmental bodies, by use of legitimate
means, other than discovery based on a showing of special need in a judicial or
quasi-judicial proceeding.

(d) The person has satisfactorily shown that disclosure of the information is
likely to cause substantial harm to the business's competitive position.

40. "Vadose zone" means the zone between the ground surface and any aquifer.

41. "Waters of the state" means all waters within the jurisdiction of this state
including all perennial or intermittent streams, lakes, ponds, impounding reservoirs,
marshes, watercourses, waterways, wells, aquifers, springs, irrigation systems, drainage
systems and other bodies or accumulations of surface, underground, natural, artificial,
public or private water situated wholly or partly in or bordering on the state.

42. "Well" means a bored, drilled or driven shaft, pit or hole whose depth is
greater than its largest surface dimension.