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North Dakota Certification 

Clean Air Act 

Section 110(a)(1) and (2) Requirements 

2008 Ozone NAAQS 

Under the Clean Air Act (CAA), States must submit State Implementation Plans (SIPs) to assure 

compliance with the National Ambient Air Quality Standards (NAAQS). Sections 110(a)(1) and 

(2) of the Clean Air Act (CAA) require states to adopt and submit to the U.S. EPA 

“infrastructure” SIPs that address basic program elements to implement, maintain, and enforce 

new or revised standards including requirements for emissions inventories, monitoring, and 

modeling among other elements. Each of the basic or infrastructure requirements is listed below 

along with the corresponding State regulation, State statute or SIP element that implements the 

requirement. 

Emission limits and other control measures: Section 110(a)(2)(A) of the Clean Air Act 

requires SIPs to include enforceable emission limits and other control measures, means or 

techniques, schedules for compliance, and other related matters. 

The North Dakota Air Pollution Control Rules (NDAC 33-15) establishes control requirements 

for ozone precursor emissions including nitrogen oxides (NOX) and volatile organic compounds. 

The following regulations address the required control measures, means and techniques. 

Chapter 

33-15-01 General Provisions 

 This chapter establishes prohibitions against creating air pollution and provides

 for the enforcement of all air pollution control rules. The chapter provides that all 

 excess emissions, including emission during startup/shutdown and malfunction, 

 are subject to enforcement action. 

33-15-02 Ambient Air Quality Standards 

This chapter establishes a state ambient air quality standard (SAAQS) for ozone 

that is identical to the NAAQS. 

33-15-04 Open Burning Restrictions 

 The chapter prohibits open burning unless specifically authorized. 

33-15-07 Control of Organic Compounds Emissions 

This chapter establishes control requirements for the emissions of volatile organic 

compounds. 
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33-15-08 Control of Air Pollution from Vehicles and Other Internal Combustion Engines 

This chapter prohibits the removal of air pollution control equipment from 

vehicles and also prohibits the emissions of unreasonable amounts of emissions 

from any internal combustion engine. 

33-15-12 Standards of Performance for New Stationary Sources 

 The chapter incorporates by reference the standards in 40 CFR 60. 

33-15-13 Emission Standards for Hazardous Air Pollutants 

 The chapter incorporates the standards in 40 CFR 61. 

33-15-14 Designated Air Contaminant Sources, Permit to Construct, Minor 

 Source Permit to Operate, Title V Permit to Operate 

 The chapter provides a preconstruction permitting program for both major and 

 minor sources, a federally enforceable state operating permit program (FESOP) 

 for minor sources, and a Title V Permit to Operate program for major sources. 

33-15-15 Prevention of Significant Deterioration of Air Quality 

 The chapter incorporates by reference the PSD requirements in 40 CFR 52.21. 

33-15-17 Restriction of Fugitive Emissions 

 The chapter establishes criteria for the control of fugitive emissions (including 

 ozone and ozone precursor emissions). 

33-15-18 Stack Heights 

 The chapter prohibits dispersion of air contaminants through the use of stacks that 

 exceed good engineering practice (GEP). 

33-15-19 Visibility Protection 

 The chapter establishes requirements for the review of major stationary sources 

 and prohibits a source from having an adverse impact on any Class I area. 

33-15-20 Control of Emissions from Oil and Gas Well Production Facilities 
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This chapter includes requirements for the control of emissions, including volatile 

organic compounds, from oil and gas wells. 

33-15-21 Acid Rain Program 

This chapter incorporates by reference the requirements of 40 CFR 72, 75 and 76. 

33-15-22 Emission Standards for Hazardous Air Pollutants for Source Categories 

 This chapter incorporates by reference the standards in 40 CFR 63. 

33-15-25 Regional Haze Requirements 

 The chapter provides for the application of Best Available Retrofit Technology 

 (BART) to affected sources. 

A copy of these rules is attached to this document. 

The North Dakota Century Code (NDCC), Chapter 23-25, Air Pollution Control (Appendix B of 

SIP), in Section 23-25-03 provides the following general authority to regulate sources of ozone 

and its precursors. This section states that the Department shall: 

NDCC 23-25-03.6 - Provide rules and regulations relating to the construction of any new 

direct or indirect air contaminant source or modification of any existing direct or 

indirect air contaminant source which the Department determines will prevent the 

attainment or maintenance of any ambient air quality standard, and require that prior to 

commencing construction or modification of any such source, the owner or operator 

thereof shall submit such information as may be necessary to permit the Department to 

make such determination. 

NDCC 23-25-03.7 – Establish ambient air quality standards for the state which may vary 

according to appropriate areas. 

NDCC 23-25-03.8 – Formulate and promulgate emission control requirements for the 

prevention, abatement, and control of air pollution in this state including achievement of 

ambient air quality standards. 

Ambient air quality monitoring/data system: Section 110(a)(2)(B) of the CAA requires SIPs 

to provide for establishment and operation of appropriate devices, methods, systems, and 

procedures necessary to monitor, compile, and analyze data on ambient air quality, and upon 

request, make such data available to EPA. 

The 2011 Annual Monitoring Network Plan for North Dakota (submitted to EPA in July, 2010 

and approved September 2010) provides for an ambient air quality monitoring system in the 

State. North Dakota currently operates eight ambient monitoring sites for ozone. 
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NDCC 23-25-03 provides the authority for the Department to conduct ambient air monitoring. 

This subsection states that the Department shall: 

 NDCC 23-25-03.2 – Determine by scientifically oriented field studies and sampling the 

degree of air pollution in the state and the several parts thereof. 

NDCC 23-25-03.10 – Require the owner or operator of a regulated air contaminant 

source to establish and maintain such records; make such reports; install, use, and 

maintain such monitoring equipment or methods; sample such emissions in accordance 

with such methods, at such locations, intervals, and procedures; and provide such other 

information as may be required. 

Ambient monitoring is covered in Chapter 6 of the North Dakota SIP. It provides for the design 

and operation of a monitoring network, reporting of data obtained from the monitors, and annual 

network review including notification to EPA of any changes, and public notification of 

exceedances of NAAQS. 

Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to include 

a program providing for enforcement of all SIP measures and the regulation of construction of 

new or modified stationary sources as necessary to assure that the NAAQS are achieved, 

including a permit program as required in parts C and D. 

NDCC 23-25-10, Enforcement – Penalties – Injunctions, provides authority for enforcement of 

the North Dakota Air Pollution Control Rules (NDAPCR) and specifies the potential penalties 

for such violation. NDAC 33-15-01-17, Enforcement, provides general interpretation of 

enforcement of the NDAPCR. 

 

The following regulations within the NDAPCR and the North Dakota SIP provide for the 

permitting of sources of ozone precursors: 

NDAC 33-15-14-02 : Permit to Construct 

 NDAC 33-15-14-03 : Minor Source Permit to Operate 

 NDAC 33-15-14-06 : Title V Permit to Operate 

 NDAC 33-15-15 : Prevention of Significant Deterioration 

NDAC 33-15-15 contains all federal PSD regulations through January 1, 2012. These rules also 

incorporate EPA’s Tailoring Rule. NDAC 33-15-14-02 and 33-15-14-03 provide a 

preconstruction and operating permit program for minor sources of ozone or ozone precursor 

emissions. 

Authority for the permitting programs is found in NDCC 23-25-03 which states that the 

Department shall: 
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NDCC 23-25-03.6 - Provide rules and regulations relating to the construction of any new 

direct or indirect air contaminant source or modification of any existing direct or 

indirect air contaminant source which the Department determines will prevent the 

attainment or maintenance of any ambient air standard, and require that prior to 

commencing construction or modification of any such source, the owner or operator 

thereof shall submit such information as may be necessary to permit the Department to 

make such determination. 

and 

NDCC 23-25-04.1 - Permits and Registration 

1. No person shall construct, install, modify, use or operate an air contaminant 

source designated by regulation, capable of causing or contributing to air 

pollution, either directly or indirectly, without a permit from the Department or in 

violation of any conditions imposed by such permit.

2. The Department shall provide for the issuance, suspension, revocation, and 

renewal of any permits which it may require pursuant to this section. 

3. The Department may require that applications for such permits shall be 

accompanied by plans, specifications, and such other information as it deems 

necessary. 

4. Possession of an approved permit or registration certificate does not relieve any 

person of the responsibility to comply with applicable emission limitations or with 

any other provision of law or regulations adopted pursuant thereto and does not 

relieve any person from the requirement that that person possess a valid 

contractor’s license issued under Chapter 43-07. 

5. The Department by rule or regulation may provide for registration and 

registration renewal of certain air contaminant sources in lieu of the permit 

required pursuant to this section. 

6. The Department may exempt by rule or regulation certain air contaminant 

sources from the permit or registration requirements set forth in this section when 

the Department makes a finding that the exemption of such sources of air 

contaminants will not be contrary to section 23-25-01.1. 

Interstate transport: Section 110(a)(2)(D) of the CAA requires SIPs to contain adequate 

provisions prohibiting any source or other type of emissions activity in one State from 1) 

contributing significantly to nonattainment of the National Ambient Air Quality Standards 

(NAAQS), 2) interfering with maintenance of the NAAQS, and 3) interfering with measures 

required to prevent significant deterioration or interfering with the implementation of plans 

related to regional haze or visibility in another State. 
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The following regulations and SIP provisions address interstate transport: 

 NDAC 33-15-15 : Prevention of Significant Deterioration 

 NDAC 33-15-19 : Visibility Protection 

 NDAC 33-15-25 : Regional Haze Requirements 

 SIP Section 7.8 : Interstate Transport of Air Pollution 

SIP : North Dakota State Implementation Plan for Regional 

 Haze (February 24, 2010) 

NDCC 23-25-03 states that the Department shall: 

NDCC 23-25-03.6 – Provide rules and regulations relating to the construction of any 

new direct or indirect air containment source or modification of any existing direct or 

indirect air containment source which the Department determines will prevent the 

attainment or maintenance of any ambient air quality standard, and require that prior to 

commencing construction or modification of any such source, the owner or operator 

thereof shall submit such information as may be necessary to permit the Department to 

make such determination. 

A. Significant Contribution Requirement of Section 110(a)(2)(D)(i)(I). 

Section 110(a)(2)(D)(i)(I) specifically provides that each state’s SIP must contain 

adequate provisions to prohibit air pollutant emissions from within the state that 

significantly contribute to nonattainment of the NAAQS in any other state. The state’s 

submission must explain whether or not emissions from the state have this impact and, if 

so, address the impact. 

The U.S. Environmental Protection Agency, as part of the justification for its FIP for the 

Cross States Air Pollution Rule (76FR 48208 - 48483), has conducted dispersion 

modeling to determine the effect North Dakota sources have on downwind ozone 

nonattainment areas (see Figure 1 for EPA’s modeling domains). EPA determined that 

North Dakota sources have a maximum contribution to any nonattainment area of 0.2 

parts per billion (76FR 48245, Table V.D-7). This is substantially less than EPA’s 

significant contribution level of 0.8 parts per billion (76FR 48236). Based on this 

modeling, North Dakota sources do not significantly contribute to any nonattainment 

area. 
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Figure 1 

CSAPR Modeling Domains 

B. Interfere with Maintenance Requirement of Section 110(a)(2)(D) 

Section 110(a)(2)(D)(i)(I) specifically provides that each state’s SIP must contain 

adequate provisions to prohibit air pollutant emissions from within the state that interfere 

with maintenance of the NAAQS in any other state. States’ submission must address this 

independent requirement of the statute. This provision requires evaluation of impacts on 

areas of other states that are meeting the ozone NAAQS, not merely areas formerly 

designated nonattainment that are subject to maintenance SIP. Therefore, the SIP must 

explain whether or not emissions from the state have this impact and, if so, address the 

impact. 

The U.S. Environmental Protection Agency, as part of the justification for their FIP for 

the Cross States Air Pollution Rule (76FR 48208 - 48483), has conducted dispersion 

modeling to determine the effect North Dakota sources have on downwind ozone 

maintenance areas. EPA determined that North Dakota sources have a maximum 

contribution to any maintenance area of 0.1 parts per billion (76FR 48245, Table V.D-7). 

This is substantially less than EPA’s significant contribution level of 0.8 parts per billion 

(76FR 48236). Based on this modeling, North Dakota sources do not significantly 

contribute to any maintenance area. 
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In North Dakota, NOX emissions (precursor to ozone) have been steadily declining (see 

Attachment 23). Since 2002, point source NOX emissions have decreased 30% from 

87,689 tons to 61,266 tons in 2011. The Regional Haze SIP is expected to decrease NOX 

emissions by an additional 10% by 2018. As emissions decrease, any contribution to 

other States’ ambient concentrations of ozone will also decrease. 

Based on the above, North Dakota believes its SIP is adequate to prohibit ozone 

precursor emissions that will prevent or interfere with the maintenance of the NAAQS in 

any other state. 

C. PSD sub-element of 110(a)(2)(D)(i)(II) and 110(a)(2)(J): 

 These sections require that sources in North Dakota may not interfere with measures 

required to be included in the SIP for any other State under Part C to prevent significant 

deterioration of air quality and requires North Dakota to have in place a prevention of 

significant determination program for sources in the North Dakota. 

The Department has adopted the Federal PSD rules by reference as they exist on January 

1, 2012. These rules incorporate all existing requirements for ozone and its precursors. 

The PSD rules require compliance with the 2008 ozone NAAQS incorporated in NDAC 

33-15-02. 

D. Visibility sub-element of 110(a)(2)(D)(i)(II) and 110(a)(2)(J): 

 These sections require that sources in North Dakota may not interfere with measures 

required for any other state for visibility protection and requires North Dakota to have in 

place measures to protect visibility in North Dakota Class I areas. 

 North Dakota has in place a SIP to address visibility impairment for major source (PSD) 

permitting (NDAC 33-15-15), specific visibility impairment (RAVI) and plume blight 

(NDAC 33-15-19). To date, no sources in North Dakota have been identified as causing 

“reasonably attributable visibility impairment” in any Federal Class I area. The 

Department has prepared and submitted to EPA (March 3, 2010) a SIP revision to 

address regional haze for the current planning period. The SIP and a FIP were effective 

May 7, 2012. The North Dakota SIP includes a long-term strategy which provides for 

improvement in the most impaired days and no degradation in the least impaired days. 

Section 110(a)(2)(D)(ii): Interstate and International Transport Provisions: 

Section 110(a)(2)(D)(ii) requires that each plan include measures that ensure compliance with 

the applicable requirements of Sections 136 and 115 relating to interstate and international 

pollution abatement. Section 126(a) of the Clean Air Act (CAA) requires each SIP to include 

provisions to notify neighboring states of potential impacts from a new or modified source. 
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The North Dakota PSD rules provide for notifying neighboring states whose land may be 

significantly affected by emissions from a new or modified source. NDAC 33-15-15-

01.2(q)(2)(d) states: 

NDAC-33-15-15-01.(q)(2)(d) - Send a copy of the notice required in subparagraph c to 

the applicant, the United States environmental protection agency administrator, and to 

officials and agencies having cognizance over the location where the source or 

modification will be situated as follows: the chief executive of the city and county where 

the source or modification would be located; any comprehensive regional land use 

planning agency; and any state, federal land manager, or Indian governing body whose 

lands may be significantly affected by emissions from the source or modification. 

Similar notification requirements are provided for minor sources under NDAC 33-15-14-

02.6.b(4). 

All PSD permit applications are provided to EPA within thirty days of receipt. This includes 

sources that could affect air quality in Canada. The draft PSD permits, the Air Quality Effects 

Analyses and the final permits are also submitted to EPA. 

No source or sources within North Dakota are the subject of an active finding under Section 126 

of the Clean Air Act with respect to any pollutant. In addition, there are no findings under 

Section 115 of the Clean Air Act against North Dakota with respect to any pollutant. 

Adequate personnel, funding and authority: Section 110(a)(2)(E) of the CAA requires states 

to provide for adequate personnel, funding and legal authority under State law to carry out its 

SIP and related issues. 

The authority for the Department to carry out the requirements of the SIP is found in NDCC 23-

25-03 which states: 

23-25-03. Power and duties to the Department. The Department shall: 

• Encourage the voluntary cooperation of persons or affected groups to achieve the 

purposes of this chapter. 

• Determine by scientifically oriented field studies and sampling the degree of air 

pollution in the state and the several parts thereof. 

• Encourage and conduct studies, investigations, and research relating to air 

pollution and its causes, effects, prevention, abatement and control. 

• Advise, counsel, and cooperate with other public agencies and with affected 

groups and industries. 
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• Issue such orders as may be necessary to effectuate the purposes of this chapter 

and enforce the same by all appropriate administrative and judicial procedures. 

• Provide rules and regulations relating to the construction of any new direct or 

indirect air contaminant source or modification of any existing direct or indirect 

air containment source which the Department determines will prevent the 

attainment or maintenance of any ambient air quality standards, and require that 

prior to commencing construction or modification of any such source, the owner 

or operator thereof shall submit such information as may be necessary to permit 

the Department to make such determination. 

• Establish ambient air quality standards for the state which may vary according to 

appropriate areas. 

• Formulate and promulgate emission control requirements for the prevention, 

abatement, and control of air pollution in the state including achievement of 

ambient air quality standards. 

• Hold hearings relating to any aspect or matter in the administration of this 

chapter, and in connection therewith, compel the attendance of witnesses and the 

production of evidence. 

• Require the owner or operator of a regulated air containment source to establish 

and maintain such records; make such reports; install, use and maintain such 

monitoring equipment or methods; sample such emissions in accordance with 

such methods, at such locations, intervals, and procedures; and provide such 

other information as may be required. 

• Provide by rules and procedures necessary and appropriate to develop, 

implement, and enforce any air pollution prevention and control program 

established by the Federal Clean Air Act, as amended, and the authorities and 

responsibilities of which are delegatable to the state by the United States 

environmental protection agency. Such rules may include any and all enforceable 

ambient standards, emission limitations, and other control measures, means, 

techniques, or economic incentives such as fees, marketable permits, and actions 

of emission rights as provided by the Act. The Department shall develop and 

implement such federal programs if the Department determines there is a benefit 

to the state. 

• Provide by rules a program for implementing lead-based paint remediation 

training, certification and performance requirements in accordance with title 40, 

Code of Federal Regulations, part 745, sections 220, 223, 225, 226, 227 and 233.

In addition, NDAC 33-15-01-03 states: 
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 NDAC 33-15-01-03. Authority. The North Dakota State Department of Health has been 

authorized to provide and administer this article under the provisions of North Dakota 

Century Code chapter 23-25. 

The provisions of the SIP are carried out by the Department of Health. The only portion of the 

SIP that has been delegated is approval of open burning requests. Several local Health Districts 

have been delegated this authority. There are no other agencies, departments or local units that 

have been delegated authority to develop any portion of the SIP. 

NDAC 33-15-23, Fees, provides the regulatory mechanism for requiring stationary sources that 

emit air pollutants to pay a fee based on the quantity of emissions emitted. Fees are collected 

annually from both major sources and minor sources. In addition, fees are charged for reviewing 

applications for the construction of new or modified sources. Title V fees are adjusted annually 

to match the change in the consumer price index. 

The Department currently has 12 people dedicated to permitting of new or modified sources of 

air pollution and the enforcement of the air pollution control rules. In addition, another 5 people 

are dedicated to monitoring air quality. No additional staff is projected to be required in the next 

five years. If additional staff is needed to address new sources of ozone or precursor emissions, 

the Department believes revenues will be sufficient to support those positions. 

NDCC 23-25-04.2 provides the statutory authority for collecting fees. 

NDCC 23-25-04.2, Fees – Deposit in operating fund. The Department by rule or 

regulation may prescribe and provide for the payment and collection of reasonable fees 

for the issuance of permits or registration certificates. The permit or registration 

certificate fees must be based on the anticipated cost of filing and processing the 

application, of taking action on the requested permit or registration certificate, and 

conducting an inspection program to determine compliance or noncompliance with the 

permit or registration certificate. Any moneys collected for permit or registration fees 

must be deposited in the Department operating fund in the state treasury and must be 

spent subject to appropriation by the legislative assembly. 

Resources for the operation of the air pollution control program are also addressed in Section 9 

of the SIP which was updated in April 2009. The Department has determined that it has 

adequate resources to implement the 2008 ozone NAAQS. The Department has addressed the 

legal authority to collect fees necessary to implement the air pollution control program in section 

2.11 of the SIP. 

The regulations that control emissions of ozone precursor emissions are described in the section 

titled “Emission limits and other control measures”. 

Stationary source monitoring system: Section 110(a)(2)(F) of the CAA requires states to 

establish a system to monitor emissions from stationary sources and to submit periodic emission 

reports. 
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The following State regulations require monitoring of emissions from stationary sources, 

recordkeeping and reporting of emissions, and monitoring data: 

NDAC 33-15-14-02.9 

NDAC 33-15-14-03.6 

NDAC 33-15-14-06.5 

Statutory authority for the monitoring, recordkeeping and reporting is found in NDCC 23-25-03 

which states that the Department shall: 

NDCC 23-25-03.10 – Require the owner or operator of a regulated air containment 

source to establish and maintain such records; make such reports; install, use and 

maintain such monitoring equipment or methods; sample such emissions in accordance 

with such methods, at such locations, intervals, and procedures; and provide such other 

information as may be required. 

Source surveillance is also addressed in Chapter 8 of the SIP. This chapter provides for the 

permitting of sources, inspection of the sources, recordkeeping and reporting by sources, and 

compliance determinations. Section 8.2 of the SIP commits the Department to the correlation of 

data with the applicable requirements. All reports are available for public inspection in 

accordance with NDAC 33-15-01-16.1. 

NDAC 33-15-01-12.2 provides the Department the authority to conduct its own emission tests. 

NDAC 33-15-01-17.2 allows the Department to use any credible evidence for the purpose of 

establishing whether a source has violated or is in violation of the SIP or any permit that has 

been issued. 

Emergency episodes: Section 110(a)(2)(G) of the CAA requires states to provide for authority 

to address activities causing imminent and substantial endangerment to public health, including 

contingency plans to implement the emergency episode provisions in their SIPs. 

NDAC 33-15-11, Prevention of Air Pollution Emergency Episodes, provides the means to 

implement emergency air pollution episode measures and is authorized by NDCC 23-25-03 

which states that the Department shall: 

NDCC 23-25-03.5 – Issue such orders as may be necessary to effectuate the purposes of 

this chapter and enforce the same by all appropriate administrative and judicial 

procedures. 

NDCC 28-32-32 (Appendix B of SIP) states that in an emergency, the administrative agency (the 

Department) may take action pursuant to a specific statute as is necessary to prevent or avoid 

imminent peril to public health, safety or welfare.
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In addition, NDCC 23-25-08 states “when an emergency exists requiring immediate action to 

protect the public health and safety, the Department may, without notice or hearing, issue an 

order reciting the existence of such emergency and requiring that such action be taken as is 

necessary to meet this emergency.” 

Prevention of emergency episodes is addressed in Section 5 of the SIP. The SIP includes: 

Section 5.2 - Episode Criteria 

Section 5.3 – Public announcements 

Section 5.4 – Episode Surveillance 

Section 5.5 – Emission Reduction Plan 

Future SIP revisions: Section 110(a)(2)(H) of the CAA requires states to have the authority to 

revise their SIPs in response to changes in the NAAQS, availability of improved methods for 

attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate. 

NDCC 25-25-03 states that the Department shall: 

NDCC 23-25-03.8 –Formulate and promulgate emission control requirements for the 

prevention, abatement and control of air pollution in this state including achievement of 

ambient air quality standards. 

NDCC 23-25-03.12 – Provide by rules any procedures necessary and appropriate to 

develop, implement, and enforce any air pollution prevention and control program 

established by the Federal Clean Air Act, as amended, and the authorities and 

responsibilities of which are delegatable to the state by the United States environmental 

protection agency. Such rules may include any and all enforceable ambient standards, 

emission limitations, and other control measures, means, techniques, or economic 

incentives such as fees, marketable permits, and auctions of emissions rights as provided 

by the Act. The Department shall develop and implement such as federal programs if the 

Department determines there is a benefit to the state. 

The North Dakota SIP, Section 1.14, commits the Department to making the necessary revisions. 

Section 1.14 states “The Department will revise this implementation plan as may be necessary to 

take account of revisions of the National Ambient Air Quality Standards (both primary and 

secondary) or the availability of improved or more expeditious methods of attaining these 

standards. The Department will also revise the implementation plan whenever the Administrator 

of the United States Environmental Protection Agency finds, on the basis of information 

available to the Administrator, that the plan is substantially inadequate to attain the National 

Ambient Air Quality Standards which it implements or to otherwise comply with additional 

requirements established under the Federal Clean Air Act. The Department will make such 
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revision only if the finding of the Administrator is in accordance with the requirements of the 

Federal Clean Air Act.” 

Consultation with government officials: Section 110(a)(2)(J) of the CAA requires states to 

provide a process for consultation with local governments, designated organizations and federal 

land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 

121 relative to consultation. 

North Dakota has no transportation control plans, maintenance plans or nonattainment areas. 

For preconstruction review, the public participation procedures of NDAC 33-15-14-02.6 are 

followed for minor sources. For sources subject to PSD review, the public participation 

procedures in paragraph (q) of NDAC 33-15-15-01.2 are followed. Both NDAC 33-15-14-02.6 

and 33-15-15-01.2(q) require notification of the chief executive of the city or county a source is 

proposing to locate, any regional land use planning agency, and any state, federal land manager 

or Indian body whose lands will be significantly affected by a proposed source’s emissions. 

Consultation with the FLMs for PSD projects is accomplished in accordance with 40 CFR 52.21 

(p) which is incorporated by reference into NDAC 33-15-15-01.2. For enforcement orders, the 

requirements of NDCC 23-25-08 and NDCC 28-32 are followed. Consultation with other 

government agencies is addressed in Chapter 10 of the SIP. This Chapter of the SIP commits the 

Department to consultation with adjacent state, local government and other state agencies 

whenever a SIP revision is required. 

Public notification: Section 110(a)(2)(J) of the CAA further requires states to notify the public 

if any NAAQS is exceeded in an area and to enhance public awareness of measures that can be 

taken to prevent exceedances. 

The North Dakota SIP, Section 6.9, commits the Department to notification of the public, on a 

regular basis, whenever an ambient air quality standard is exceeded. The public will be advised 

of the potential health effects, measures which can be taken to prevent future exceedances, and 

ways they can participate in the regulatory and other efforts to improve air quality. The authority 

for this notification is found in NDCC 23-25-06. In addition, NDAC 33-15-11-03.1 requires the 

Department to notify the public whenever an air pollution emergency has been determined to 

exist. 

PSD and visibility protection: Section 110(a)(2)(J) of the CAA requires states to meet 

applicable requirements of Part C related to prevention of significant deterioration and visibility 

protection. 

The Department has updated the SAAQS for ozone in NDAC 33-15-02 (April, 2011) to be 

identical to the 2008 NAAQS. Pursuant to NDCC 33-15-15-01.2(k)(i), a PSD applicant must 

demonstrate compliance with the SAAQS including the 2008 ozone NAAQS. The Department 

has also adopted the “Tailoring Rule” for greenhouse gases (April, 2011). PSD applicants must 

address any applicable requirements for greenhouse gases. 
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The Department has submitted it Regional Haze SIP (March, 2010) which is effective as of May 

7, 2012. In addition, visibility impacts must be addressed by a PSD applicant in accordance with 

NDAC 33-15-15-01.2(o) and (p). 

Air quality modeling/data: Section 110(a)(2)(K) requires SIPs to provide for the performance 

of air quality modeling for predicting effects on air quality of emissions of any NAAQS pollutant 

and the submission of such data to EPA upon request. 

Air quality modeling is addressed in Section 7.7 of the North Dakota SIP. This section commits 

the Department to performing air quality modeling to predict the impact of a source on air 

quality. The section also commits the Department to providing data to EPA on air quality 

modeling upon request. 

Modeling for minor sources is addressed in NDAC 33-15-14-02.4 while modeling for major PSD 

sources is address in 40 CFR 52.21(k), (l), (m), (n) and (o) as incorporated into NDAC 33-15-15-

01.2. Authority for requiring modeling is in NDCC 23-25-03 which states the Department shall: 

NDCC 23-25-03-02 - Determine by scientifically oriented field studies and sampling the 

degree of air pollution in the state and the several parts thereof. 

and 

NDCC 23-25-03-12 - Provide by rules and procedures necessary and appropriate to 

develop, implement, and enforce any air pollution prevention and control program 

established by the Federal Clean Air Act, as amended, and the authorities and 

responsibilities of which are delegatable to the state by the United States Environmental 

Protection Agency. Such rules may include any and all enforceable ambient standards, 

emissions limitations, and other control measures, means, techniques, or economic 

incentives such as fees, marketable permits, and auctions of emissions rights as provided 

by the Act. The Department shall develop and implement such federal programs if the 

Department determines there is a benefit to the state. 

Permitting fees: Section 110(a)(2)(L) requires SIPs to include a requirement for each major 

stationary source to pay permitting fees to cover the cost of reviewing, acting upon, 

implementing and enforcing a permit until such fee requirement is superseded by EPA approval 

of a fee program under Title V of the Clean Air Act. 

NDAC 33-15-23, Fees, establishes fees for processing Permit to Construct applications, annual 

operating fees for minor sources and fees for major sources under the Title V Permit to Operate 

program. These fees are used for reviewing, approving, implementing and enforcing a permit. 

The authority for the fees is found in NDCC 23-25-04.2. 

NDCC 23-25-04.2. Fees – Deposit in operating fund: The Department by rule or 

regulation may prescribe and provide for the payment and collection of reasonable fees 

for the issuance of permits or registration certificates. The permit or registration 
16 

certificate fees for the issuance of the anticipated cost of filing and processing the 

application, of taking action on the requested permit or registration certificate, and 

conducting an inspection program to determine compliance or noncompliance with the 

permit or registration certificate. Any moneys collected for permit or registration fees 

must be deposited in the Department operating fund in the state treasury and must be 

spent subject to appropriation by the legislative assembly. 

The Department collects fees for reviewing permit applications, annual minor source Permit to 

Operate fees and Title V Permit to Operate fees. North Dakota’s Title V Permit to Operate 

program received full approval from EPA effective August 16, 1999 (64 FR 32433). 

Consultation/participation by affected local entities: Section 110(a)(2)(M) requires SIPs to 

provide for consultation and participation in SIP development by local political subdivisions 

affected by the SIP. 

No other state or local entities are responsible for developing the SIP. Implementation and 

enforcement of open burning request approvals has been delegated to several local health units. 

The Department retains responsibility for ensuring adequate implementation of all SIP revisions. 

No other portions of the SIP have been delegated to other organizations. 

The North Dakota SIP, Chapter 10, addresses the consultation process the Department will use to 

coordinate with local political subdivisions that are affected by any SIP revisions. NDCC 23-25-

03 also requires consultation by stating that the Department shall: 

NDCC 23-25-03.4 – Advise, consults and cooperates with other public agencies and with 

affected groups and industries. 

Intergovernmental cooperation, Section 10 of North Dakota’s SIP, addresses the process for 

sharing information and working with other government agencies. 

Regarding SIP and rule revisions, NDCC 23-25-02.6 requires public notice, the opportunity for 

public comment, and a public hearing. It states: “The advisory council shall hold a public 

hearing to consider and recommend the adoption, amendment, or repeal of rules, regulations, and 

standards as provided in this chapter. Notice of such public hearing or hearings must be given by 

publication of a notice of such hearing or hearings in each of the official county newspapers 

within the state of North Dakota by at least two publications, one week apart, the last publication 

being at least thirty days prior to the first hearing. The hearing or hearings must be held in the 

state capitol in Bismarck and interested parties may present witnesses and other evidence 

pertinent and relevant to proposed rules, regulations and standards. The advisory council shall 

consider any other matters related to the purposes of this chapter and may make 

recommendations on its own initiative to the Department concerning the administration of this 

chapter.” 

North Dakota has no nonattainment areas. Therefore, consultation with affected entities is not 

required for transportation conformity or other nonattainment area SIP requirements. 
17 

State Boards: Section 128 requires that any board or body that approves permits or enforcement 

orders must have at least a majority of its members who represent the public interest and do not 

derive any significant portion of their income from persons subject to permits or enforcement 

actions under the Clean Air Act. In addition, members of such boards or bodies, or the head of 

an executive agency with similar powers, must adequately disclose any conflict of interest. 

In North Dakota there are no boards or bodies that approve permits or enforcement orders. The 

State Health Officer is the head of the North Dakota Department of Health which includes the 

Air Pollution Control program. NDCC 23-01-05 states “The State Health Officer may not 

engage in any occupation or business that may conflict with the statutory duties of the State 

Health Officer ...”. NDCC 23-01-05 is contained in Appendix B of the SIP. The Department 

has committed to revise the SIP to require that any conflict of interest by anyone that approves 

permits or enforcement actions must be disclosed. (See Attachment 21). 

Conclusion: Based on the information presented above, North Dakota has determined that its 

state implementation plan is adequate to implement the 2008 one-hour NAAQS for ozone.
18 

Attachments 

1. NDCC 23-01 

2. NDCC 23-25 

3. NDCC 28-32 

4. NDAC 33-15-01 

5. NDAC 33-15-02 

6. NDAC 33-15-04 

7. NDAC 33-15-07 

8. NDAC 33-15-08 

9. NDAC 33-15-11 

10. NDAC 33-15-12 

11. NDAC 33-15-13 

12. NDAC 33-15-14 

13. NDAC 33-15-15 

14. NDAC 33-15-17 

15. NDAC 33-15-18 

16. NDAC 33-15-19 

17. NDAC 33-15-20 

18. NDAC 33-15-21 

19. NDAC 33-15-22 

20. NDAC 33-15-23 

21. NDAC 33-15-25 

22. Section 128 Commitment Letter 
19 

23. Public Participation Documentation 

a. Full Public Notice 

b. Website Notice 

c. Affidavit of Publication 

d. Invoice of Publication 

e. List of Hearing attendees (No hearing held) 

f. Hearing transcript (No hearing held) 

g. Response to Public Comments 

h. Certification of Hearing (No hearing held) 

24. NOX Emissions Data