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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 S tate Implementation Plans (SIPs) to assure compliance with the National Ambient Air Quality St andards (NAAQS). Sections 110(a)(1) and (2) of the Clean Air Act (CAA) require states to ad opt and submit to the U.S. EPA “infrastructure” SIPs that address basic program el ements to implement, maintain, and enforce new or revised standards including requirements for emissions inventories, monitoring, and modeling among other elements. Each of the basic o r infrastructure requirements is listed below along with the corresponding State regulation, Stat e 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 limit s and other control measures, means or techniques, schedules for compliance, and other rel ated matters.

The North Dakota Air Pollution Control Rules (NDAC 33-15) establishes control requirements for ozone precursor emissions including nitrogen ox ides (NO X ) and volatile organic compounds. The following regulations address the required cont rol measures, means and techniques.

Chapter

33-15-01 General Provisions

This chapter establishes prohibitions against cre ating air pollution and provides for the enforcement of all air pollution control r ules. The chapter provides that all excess emissions, including emission during startu p/shutdown and malfunction, are subject to enforcement action.

33-15-02 Ambient Air Quality Standards

This chapter establishes a state ambient air qualit y standard (SAAQS) for ozone that is identical to the NAAQS.

33-15-04 Open Burning Restrictions

The chapter prohibits open burning unless specifi cally authorized.

33-15-07 Control of Organic Compounds Emissions

This chapter establishes control requirements for t he emissions of volatile organic compounds.2

33-15-08 Control of Air Pollution from Vehicles an d Other Internal Combustion Engines

This chapter prohibits the removal of air pollution control equipment from vehicles and also prohibits the emissions of unreas onable amounts of emissions from any internal combustion engine.

33-15-12 Standards of Performance for New Stationar y Sources

The chapter incorporates by reference the standar ds in 40 CFR 60.

33-15-13 Emission Standards for Hazardous Air Pollu tants

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 Oper ate

The chapter provides a preconstruction permitting program for both major and minor sources, a federally enforceable state oper ating permit program (FESOP) for minor sources, and a Title V Permit to Operat e program for major sources.

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

The chapter incorporates by reference the PSD req uirements 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 contamina nts through the use of stacks that exceed good engineering practice (GEP).

33-15-19 Visibility Protection

The chapter establishes requirements for the revi ew of major stationary sources and prohibits a source from having an adverse imp act on any Class I area.

33-15-20 Control of Emissions from Oil and Gas Well Production Facilities3 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 requirem ents of 40 CFR 72, 75 and 76.

33-15-22 Emission Standards for Hazardous Air Pollu tants for Source Categories

This chapter incorporates by reference the standa rds 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 ge neral authority to regulate sources of ozone and its precursors. This section states that the D epartment shall:

NDCC 23-25-03.6 - Provide rules and regulations rel ating to the construction of any new direct or indirect air contaminant source or modifi cation of any existing direct or indirect air contaminant source which the Departmen t determines will prevent the attainment or maintenance of any ambient air qualit y 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 nec essary to permit the Department to

make such determination.

NDCC 23-25-03.7 – Establish ambient air quality sta ndards 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 appro priate devices, methods, systems, and procedures necessary to monitor, compile, and analy ze data on ambient air quality, and upon request, make such data available to EPA.

The 2011 Annual Monitoring Network Plan for North D akota (submitted to EPA in July, 2010 and approved September 2010) provides for an ambien t air quality monitoring system in the State. North Dakota currently operates eight amb ient monitoring sites for ozone.4

NDCC 23-25-03 provides the authority for the Depart ment to conduct ambient air monitoring. This subsection states that the Department shall:

NDCC 23-25-03.2 – Determine by scientifically orie nted field studies and sampling the degree of air pollution in the state and the severa l 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; samp le such emissions in accordance with such methods, at such locations, intervals, an d procedures; and provide such other information as may be required.

Ambient monitoring is covered in Chapter 6 of the N orth 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 meas ures 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 a nd D.

NDCC 23-25-10, Enforcement – Penalties – Injunction s, provides authority for enforcement of the North Dakota Air Pollution Control Rules (NDAPC R) 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 Deterior ation

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 mi nor sources of ozone or ozone precursor

emissions.

Authority for the permitting programs is found in N DCC 23-25-03 which states that the Department shall:5

NDCC 23-25-03.6 - Provide rules and regulations rel ating to the construction of any new direct or indirect air contaminant source or modifi cation of any existing direct or indirect air contaminant source which the Departmen t determines will prevent the attainment or maintenance of any ambient air standa rd, 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 nec essary 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, susp ension, revocation, and renewal of any permits which it may require pursuan t to this section.

3. The Department may require that applications for su ch permits shall be accompanied by plans, specifications, and such othe r information as it deems

necessary.

4. Possession of an approved permit or registration ce rtificate does not relieve any person of the responsibility to comply with applica ble emission limitations or with any other provision of law or regulations adopted p ursuant thereto and does not relieve any person from the requirement that that p erson possess a valid contractor’s license issued under Chapter 43-07.

5. The Department by rule or regulation may provide fo r registration and registration renewal of certain air contaminant sou rces in lieu of the permit required pursuant to this section.

6. The Department may exempt by rule or regulation cer tain air contaminant sources from the permit or registration requirement s set forth in this section when the Department makes a finding that the exemption o f 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 NA AQS, and 3) interfering with measures required to prevent significant deterioration or in terfering with the implementation of plans related to regional haze or visibility in another S tate.6

The following regulations and SIP provisions addres s interstate transport:

NDAC 33-15-15 : Prevention of Significant Deterior ation NDAC 33-15-19 : Visibility Protection NDAC 33-15-25 : Regional Haze Requirements SIP Section 7.8 : Interstate Transport of Air Poll ution SIP : North Dakota State Implementation Plan for R egional Haze (February 24, 2010)

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

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

new direct or indirect air containment source or mo dification of any existing direct or indirect air containment source which the Departmen t determines will prevent the attainment or maintenance of any ambient air qualit y 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 nec essary 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 th at each state’s SIP must contain adequate provisions to prohibit air pollutant emiss ions from within the state that significantly contribute to nonattainment of the N AAQS in any other state. The state’s submission must explain whether or not emissions fr om the state have this impact and, if so, address the impact.

The U.S. Environmental Protection Agency, as part o f 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 sourc es have on downwind ozone nonattainment areas (see Figure 1 for EPA’s modelin g 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 bil lion (76FR 48236). Based on this modeling, North Dakota sources do not significantly contribute to any nonattainment

area.7 Figure 1 CSAPR Modeling Domains

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

Section 110(a)(2)(D)(i)(I) specifically provides th at each state’s SIP must contain adequate provisions to prohibit air pollutant emiss ions 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 provi sion requires evaluation of impacts on areas of other states that are meeting the ozone NA AQS, not merely areas formerly designated nonattainment that are subject to mainte nance SIP. Therefore, the SIP must explain whether or not emissions from the state hav e this impact and, if so, address the impact.

The U.S. Environmental Protection Agency, as part o f the justification for their FIP for the Cross States Air Pollution Rule (76FR 48208 - 4 8483), has conducted dispersion modeling to determine the effect North Dakota sourc es have on downwind ozone

maintenance areas. EPA determined that North Dakot a sources have a maximum contribution to any maintenance area of 0.1 parts p er billion (76FR 48245, Table V.D-7). This is substantially less than EPA’s significant c ontribution level of 0.8 parts per billion (76FR 48236). Based on this modeling, North Dakot a sources do not significantly contribute to any maintenance area.8

In North Dakota, NO X emissions (precursor to ozone) have been steadily declining (see Attachment 23). Since 2002, point source NO X emissions have decreased 30% from 87,689 tons to 61,266 tons in 2011. The Regional H aze SIP is expected to decrease NO X emissions by an additional 10% by 2018. As emissio ns decrease, any contribution to

other States’ ambient concentrations of ozone will also decrease.

Based on the above, North Dakota believes its SIP i s 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 Dakot a may not interfere with measures required to be included in the SIP for any other St ate under Part C to prevent significant deterioration of air quality and requires North Dak ota to have in place a prevention of significant determination program for sources in th e North Dakota.

The Department has adopted the Federal PSD rules by reference as they exist on January 1, 2012. These rules incorporate all existing requ irements for ozone and its precursors. The PSD rules require compliance with the 2008 ozon e NAAQS incorporated in NDAC

33-15-02.

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

These sections require that sources in North Dakot a may not interfere with measures required for any other state for visibility protect ion and requires North Dakota to have in place measures to protect visibility in North Dakot a Class I areas.

North Dakota has in place a SIP to address visibil ity impairment for major source (PSD) permitting (NDAC 33-15-15), specific visibility imp airment (RAVI) and plume blight (NDAC 33-15-19). To date, no sources in North Dako ta 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 peri od. The SIP and a FIP were effective May 7, 2012. The North Dakota SIP includes a long-t erm strategy which provides for improvement in the most impaired days and no degrad ation in the least impaired days.

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

Section 110(a)(2)(D)(ii) requires that each plan in clude 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 A ir Act (CAA) requires each SIP to include provisions to notify neighboring states of potentia l impacts from a new or modified source.9

The North Dakota PSD rules provide for notifying ne ighboring states whose land may be significantly affected by emissions from a new or m odified source. NDAC 33-15-15- 01.2(q)(2)(d) states:

NDAC-33-15-15-01.(q)(2)(d) - Send a copy of the not ice required in subparagraph c to the applicant, the United States environmental prot ection agency administrator, and to officials and agencies having cognizance over the l ocation 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 co mprehensive regional land use planning agency; and any state, federal land manage r, or Indian governing body whose lands may be significantly affected by emissions fr om 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 wit hin thirty days of receipt. This includes sources that could affect air quality in Canada. T he draft PSD permits, the Air Quality Effects Analyses and the final permits are also submitted t o EPA.

No source or sources within North Dakota are the su bject 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 Dako ta 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 lega l authority under State law to carry out its

SIP and related issues.

The authority for the Department to carry out the r equirements 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 a ffected 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 thereo f.

• Encourage and conduct studies, investigations, and research relating to air pollution and its causes, effects, prevention, abat ement and control.

• Advise, counsel, and cooperate with other public ag encies and with affected groups and industries.10

• Issue such orders as may be necessary to effectuate the purposes of this chapter and enforce the same by all appropriate administrat ive and judicial procedures.

• Provide rules and regulations relating to the const ruction of any new direct or indirect air contaminant source or modification of any existing direct or indirect air containment source which the Department determi nes will prevent the attainment or maintenance of any ambient air qualit y standards, and require that prior to commencing construction or modification of any such source, the owner or operator thereof shall submit such information a s may be necessary to permit the Department to make such determination.

• Establish ambient air quality standards for the sta te which may vary according to appropriate areas.

• Formulate and promulgate emission control requireme nts for the prevention, abatement, and control of air pollution in the stat e including achievement of ambient air quality standards.

• Hold hearings relating to any aspect or matter in t he administration of this chapter, and in connection therewith, compel the at tendance of witnesses and the production of evidence.

• Require the owner or operator of a regulated air co ntainment source to establish and maintain such records; make such reports; insta ll, use and maintain such monitoring equipment or methods; sample such emissi ons in accordance with such methods, at such locations, intervals, and pro cedures; and provide such other information as may be required.

• Provide by rules and procedures necessary and appro priate to develop, implement, and enforce any air pollution prevention and control program established by the Federal Clean Air Act, as amend ed, and the authorities and responsibilities of which are delegatable to the st ate by the United States environmental protection agency. Such rules may in clude any and all enforceable ambient standards, emission limitations, and other control measures, means, techniques, or economic incentives such as fees, ma rketable permits, and actions of emission rights as provided by the Act. The Dep artment shall develop and implement such federal programs if the Department d etermines there is a benefit

to the state.

• Provide by rules a program for implementing lead-ba sed paint remediation training, certification and performance requirement s 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:11

NDAC 33-15-01-03. Authority. The North Dakota St ate Department of Health has been authorized to provide and administer this article u nder the provisions of North Dakota Century Code chapter 23-25.

The provisions of the SIP are carried out by the De partment of Health. The only portion of the SIP that has been delegated is approval of open bur ning requests. Several local Health Districts have been delegated this authority. There are no o ther agencies, departments or local units that have been delegated authority to develop any portio n of the SIP.

NDAC 33-15-23, Fees, provides the regulatory mechan ism for requiring stationary sources that emit air pollutants to pay a fee based on the quant ity 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 modifie d 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 pollut ion control rules. In addition, another 5 people are dedicated to monitoring air quality. No additi onal staff is projected to be required in the next five years. If additional staff is needed to addres s 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 fo r collecting fees.

NDCC 23-25-04.2, Fees – Deposit in operating fund. The Department by rule or regulation may prescribe and provide for the paymen t and collection of reasonable fees for the issuance of permits or registration certifi cates. The permit or registration certificate fees must be based on the anticipated c ost of filing and processing the application, of taking action on the requested perm it or registration certificate, and conducting an inspection program to determine compl iance or noncompliance with the permit or registration certificate. Any moneys col lected 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 a ssembly.

Resources for the operation of the air pollution co ntrol program are also addressed in Section 9 of the SIP which was updated in April 2009. The De partment has determined that it has adequate resources to implement the 2008 ozone NAAQ S. The Department has addressed the legal authority to collect fees necessary to implem ent the air pollution control program in section

2.11 of the SIP.

The regulations that control emissions of ozone pre cursor 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 statio nary sources and to submit periodic emission
reports.12

The following State regulations require monitoring of emissions from stationary sources, recordkeeping and reporting of emissions, and monit oring data:

NDAC 33-15-14-02.9

NDAC 33-15-14-03.6

NDAC 33-15-14-06.5

Statutory authority for the monitoring, recordkeepi ng 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; samp le such emissions in accordance with such methods, at such locations, intervals, an d 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, r ecordkeeping 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 auth ority 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 substant ial endangerment to public health, including contingency plans to implement the emergency episod e provisions in their SIPs.

NDAC 33-15-11, Prevention of Air Pollution Emergenc y 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 neces sary to effectuate the purposes of this chapter and enforce the same by all appropriat e 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.13

In addition, NDCC 23-25-08 states “ when an emergency exists requiring immediate action to protect the public health and safety, the Departmen t 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 Se ction 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 NAA QS, availability of improved methods for attaining the NAAQS, or in response to an EPA findi ng 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 p revention and control program established by the Federal Clean Air Act, as amende d, and the authorities and responsibilities of which are delegatable to the st ate by the United States environmental protection agency. Such rules may include any and all enforceable ambient standards, emission limitations, and other control measures, m eans, techniques, or economic incentives such as fees, marketable permits, and au ctions of emissions rights as provided by the Act. The Department shall develop and imple ment such as federal programs if the Department determines there is a benefit to the sta te.

The North Dakota SIP, Section 1.14, commits the Dep artment to making the necessary revisions. Section 1.14 states “The Department will revise thi s implementation plan as may be necessary to

take account of revisions of the National Ambient A ir 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 imp lementation plan whenever the Administrator of the United States Environmental Protection Agenc y finds, on the basis of information available to the Administrator, that the plan is su bstantially inadequate to attain the National Ambient Air Quality Standards which it implements o r to otherwise comply with additional requirements established under the Federal Clean Ai r Act. The Department will make such14

revision only if the finding of the Administrator i s 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 gover nments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementat ion requirements pursuant to section

121 relative to consultation.

North Dakota has no transportation control plans, m aintenance plans or nonattainment areas. For preconstruction review, the public participatio n 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 a re followed. Both NDAC 33-15-14-02.6 and 33-15-15-01.2(q) require notification of the ch ief 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 af fected by a proposed source’s emissions. Consultation with the FLMs for PSD projects is acco mplished 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 fo llowed. Consultation with other government agencies is addressed in Chapter 10 of t he SIP. This Chapter of the SIP commits the Department to consultation with adjacent state, loc al 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 Depa rtment to notification of the public, on a regular basis, whenever an ambient air quality stan dard 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 oth er efforts to improve air quality. The authority

for this notification is found in NDCC 23-25-06. I n addition, NDAC 33-15-11-03.1 requires the Department to notify the public whenever an air pol lution 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 preven tion of significant deterioration and visibility protection.

The Department has updated the SAAQS for ozone in N DAC 33-15-02 (April, 2011) to be identical to the 2008 NAAQS. Pursuant to NDCC 33-1 5-15-01.2(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 greenhous e gases (April, 2011). PSD applicants must address any applicable requirements for greenhouse gases.15

The Department has submitted it Regional Haze SIP ( March, 2010) which is effective as of May 7, 2012. In addition, visibility impacts must be a ddressed 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 fo r the performance of air quality modeling for predicting effects on a ir 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 t o predict the impact of a source on air quality. The section also commits the Department t o 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 orie nted field studies and sampling the degree of air pollution in the state and the severa l parts thereof.

and

NDCC 23-25-03-12 - Provide by rules and procedures necessary and appropriate to develop, implement, and enforce any air pollution p revention and control program established by the Federal Clean Air Act, as amende d, and the authorities and responsibilities of which are delegatable to the st ate 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 au ctions of emissions rights as provided by the Act. The Department shall develop and imple ment such federal programs if the Department determines there is a benefit to the sta te.

Permitting fees : Section 110(a)(2)(L) requires SIPs to include a requirement for each major stationary source to pay permitting fees to cover t he 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 processin g 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, approv ing, implementing and enforcing a permit. The authority for the fees is found in NDCC 23-25-0 4.2.

NDCC 23-25-04.2. Fees – Deposit in operating fund: The Department by rule or regulation may prescribe and provide for the paymen t and collection of reasonable fees for the issuance of permits or registration certifi cates. The permit or registration16

certificate fees for the issuance of the anticipate d cost of filing and processing the application, of taking action on the requested perm it or registration certificate, and conducting an inspection program to determine compl iance or noncompliance with the permit or registration certificate. Any moneys col lected 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 a ssembly.

The Department collects fees for reviewing permit a pplications, annual minor source Permit to Operate fees and Title V Permit to Operate fees. N orth Dakota’s Title V Permit to Operate program received full approval from EPA effective A ugust 16, 1999 (64 FR 32433).

Consultation/participation by affected local entiti es : Section 110(a)(2)(M) requires SIPs to provide for consultation and participation in SIP d evelopment by local political subdivisions affected by the SIP.

No other state or local entities are responsible fo r developing the SIP. Implementation and enforcement of open burning request approvals has b een 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 con sultation process the Department will use to coordinate with local political subdivisions that a re affected by any SIP revisions. NDCC 23-25- 03 also requires consultation by stating that the D epartment shall:

NDCC 23-25-03.4 – Advise, consults and cooperates w ith 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 governme nt agencies.

Regarding SIP and rule revisions, NDCC 23-25-02.6 r equires 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, ame ndment, or repeal of rules, regulations, and standards as provided in this chapter. Notice of s uch 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 pu blications, one week apart, the last publication being at least thirty days prior to the first heari ng. The hearing or hearings must be held in the state capitol in Bismarck and interested parties ma y present witnesses and other evidence pertinent and relevant to proposed rules, regulatio ns 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 Depart ment 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 non attainment area SIP requirements.17

State Boards: Section 128 requires that any board or body that ap proves 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, memb ers of such boards or bodies, or the head of an executive agency with similar powers, must adequ ately 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 Dakot a Department of Health which includes the Air Pollution Control program. NDCC 23-01-05 state s “The State Health Officer may not engage in any occupation or business that may confl ict with the statutory duties of the State

Health Officer ...”. NDCC 23-01-05 is contained in A ppendix 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 Dak ota 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 Letter19

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. NO X Emissions Data