# -State

# of-- 

# NorthDakota Office of the Governor 

## JackDalrymple Governor

LisaP.Jackson,Administrator May 25,2012

c/oJamesMartin,RegionalAdministrator (8RA) U.S. EPA,Region 8 1595WynkoopStreet Denver,CO 80202-1129
RE: ND State ImplementationPlan for 1997 PM2.s NAAQS and2008Lead NAAQS
DearAdministratorJackson:
TheNorthDakotaDepartmentofHealthhasreviewedits State ImplementationPlan(SIP) for the controlofairpollutionto determineifthe SIPis adequate forimplementingthe 1997 PM2.s NAAQS and2008leadNAAQS. Attached to this letterare documentswhichdemonstratethattherequired elements are includedinthe existingSIPexceptfor the "conflictofinterest"requirementsunder the CleanAir

### Act§ 128.TheDepartmentofHealthhas committedtorevise the State ImplementationPlanby May 31, 2013 to address the requirements of§ 128.
Ifyou have any questions regardingthe submittal,please contactMr. Terry O'Clair,Director,DivisionofAir Quality, NorthDakotaDepartmentofHealth at 701-328-5188. Sincerely,

C: David Glatt, Chief, EnvironmentalHealthSection TerryO'Clair,Director,DivisionofAir 

### Quality
37:68:56

600E BoulevardAve. • Bismarck,ND58505-0001 • Phone:701.328.2200 • Fax: 701.328.2205 • www.governor.nd.gov 

# ..

### NorthDakotaCertification CleanAirAct Section 110(a)(1)and(2) Requirements 1997PM2.sNAAQS
Underthe CleanAirAct (CAA), Statesmust submit State ImplementationPlans (SIPs) to assure compliancewiththeNational AmbientAirQuality 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 otherelements. Eachofthebasic orinfrastructurerequirements is listedbelow 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, schedulesfor compliance, andotherrelatedmatters.

The North Dakota Air Pollution Control Rules (NDAC 33-15) establishes control requirements for particulate matter (PM and PM2

. 5) 

### and PM2

.5

### precursors. The following regulations address therequiredcontrolmeasures,means andtechniques.

33-15-01

33-15-02 GeneralProvisions

This chapter establishes prohibitions against creating air pollution and provides forthe enforcementofall airpollutioncontrolrules. The chapterprovidesthat all

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

are subjectto enforcementaction.

AmbientAirQuality Standards

1

### 33-15-03

33-15-04

33-15-05

33-15-12

33-15-13

33-15-14 Thischapterestablishes a stateambientairquality standard(SAAQS)for PM2
.5 

### thatisidenticaltotheNAAQS.

RestrictionofEmissionofVisibleAirContaminants

The chapterestablishesvisible emissionsstandardsforbothpointandarea sources, includingsources ofPM2
.5

### emissions.

OpenBurningRestrictions

Thechapterprohibitsthe openburningunless specificallyauthorized.

Emissions ofParticulateMatterRestricted

The chapterestablishesPMemissionlimitsfor fuel burningandindustrial processtype sources.

StandardsofPerformanceforNewStationarySources

Thechapterincorporatesbyreferencethe standardsin40 CFR60.

Emission StandardsforHazardousAirPollutants

Thechapterincorporatesthe standardsin40CFR61.

DesignatedAirContaminantSources,Permitto Construct,Minor SourcePermitto Operate,TitleV Permitto Operate

2

### 33-15-15

33-15-17

33-15-18

33-15-19

33-15-21

33-15-22 The chapterprovidesapreconstructionpermittingprogramforbothmajorand minorsources, afederally enforceable state operatingpermitprogram(FESOP) forminorsources, andaTitleVPermitto Operateprogramformajor sources.

PreventionofSignificantDeteriorationofAirQuality

The chapterincorporatesbyreferencethePSDrequirements in40CFR52.21.

RestrictionofFugitiveEmissions

The chapterestablishescriteriaforthecontrol offugitive emissions (including PM2
.5

### emissions).

StackHeights

The chapterprohibitsdispersionofaircontaminantsthroughtheuse ofstacksthat exceedgoodengineeringpractice (GEP).

VisibilityProtection

Thechapterestablishesrequirementsforthereviewofmajorstationarysources andprohibits a sourcefromhavinganadverseimpactonany ClassIarea.

AcidRainProgram

This chapterincorporatesbyreferencethe requirements of40 CFR72, 75 and 76. Control of sulfur dioxide and nitrogen oxides may indirectly control PM2.5 

### emissions.

Emission StandardsforHazardousAirPollutantsfor SourceCategories



### 3

### 33-15-25 Thischapterincorporatesbyreferencethe standardsin40 CFR63.

RegionalHazeRequirements

Thechapterprovidesforthe application ofBestAvailableRetrofitTechnology (BART)to affected sources.

Acopyoftheserulesis attachedtothis analysis.

TheNorthDakotaCenturyCode (NDCC), Chapter23-25, AirPollutionControl (AppendixB of the SIP), in Section 23-25-03 provides the following general authority to regulate sources of PM2
.5

### orPM2
.5

### precursors. This section statesthattheDepartmentshall:



### NDCC23-25-03.6- Providerulesandregulations relatingto theconstructionof anynew direct or indirect air contaminant source or modification ofany existing direct or indirect air contaminant source which the Department determines will prevent the attainmentormaintenanceof anyambientairqualitystandard, andrequire thatpriorto commencing construction or modification ofany such source, the owner or operator thereofshallsubmitsuch information as may be necessary topermit the Department to makesuchdetermination.

NDCC23-25-03.7-Establish ambientairqualitystandardsforthestatewhich mayvary accordingto appropriateareas.

NDCC 23-25-03.8

- Formulate andpromulgate emission control requirementsfor the prevention, abatement, andcontrolof airpollution in this state includingachievementof ambientairqualitystandards.

4

### Ambient air quality monitoring/data system: 

### Section 110(a)(2)(B) ofthe CAArequires 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 suchdataavailabletoEPA.

The 2011 Annual Monitoring Network Plan for North Dakota (submitted to EPA in July 2010 and approved in September 2010) provides for an ambient air quality monitoring system in the State.

NDCC 23-25-03 provides the authority for the Department to conduct ambient air monitoring. This subsectionstatesthatthe Departmentshall:

NDCC 23-25-03.2 -Determine by scientifically oriented fieldstudies andsampling the degreeof airpollution in thestateandtheseveralpartsthereof

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

source to establish and maintain such records; make such reports; install, use, and maintain such monitoring equipment ormethods; sample such emissions in accordance with such methods, atsuch locations, intervals, andprocedures; andprovidesuch other informationasmayberequired.



### Ambientmonitoringis coveredinChapter6oftheNorth Dakota SIP. It

### providesfor design and operation ofamonitoring network, reporting ofdata obtained from the monitors, and an annual network review including notification to EPA of any changes, and public notification of exceedancesoftheNAAQS.

Program for enforcement ofcontrol measures: 

### Section 110(a)(2)(C)requires SIPs to include

a program providing for enforcement ofall SIP measures and the regulation ofconstruction of

new or modified stationary sources as necessary to assure that the NAAQS are achieved, includingapermitprogramas requiredinparts CandD.



### 5

### NDCC 23-15-10, Enforcement- Penalties- Injunctions, provides authority for enforcement of the NDAPCR and specifies the potential penalties for such violation. NDAC 33-15-01-17, Enforcement, provides general interpretation ofenforcement ofthe North Dakota AirPollution ControlRules (NDAPCR).

The followingregulationswithintheNDAPCRprovideforthepermittingofsourcesofPM2
.5:



### NDAC33-15-14-02 NDAC33-15-15 NDAC 33-15-14-03 NDAC 33-15-14-06 Permitto Construct PreventionofSignificantDeterioration MinorSourcePermitto Operate TitleV Permitto Operate

Authority for the permitting programs 1s found m NDCC 23-25-03 which states that the Departmentshall:



### NDCC23-25-03.6-Provide rulesandregulations relatingto the constructionof anynew direct or indirect air contaminant source or modification ofany existing direct or indirect air contaminant source which the Department determines will prevent the attainment or maintenance ofany ambient air standard, and require that prior to commencing construction or modification ofany such source, the owner or operator thereofshallsubmitsuch information as may be necessary topermit theDepartment to makesuchdetermination.

and



### NDCC23-25-04.1- PermitsandRegistration

I. No person shall construct, install, modifY, use or operate an air contaminant

source designated by regulation, capable ofcausing or contributing to air

6

### pollution, eitherdirectlyorindirectly, withoutapermit from theDepartmentorin violationof anyconditions imposedbysuchpermit.

2. The Department shall providefor the issuance, suspension, revocation, and renewalof anypermitswhich itmayrequirepursuantto this section.

3. The Department may require that applications for such permits shall be accompanied byplans, specifications, and such other information as it deems
necessary.

4. Possession of an approvedpermitor registration certificatedoes not relieve any personof the responsibilityto complywithapplicableemission limitations orwith anyotherprovision oflaw orregulations adoptedpursuant thereto anddoes not relieve any person from the requirement that that person possess a valid contractor'slicense issuedunderChapter43-07.

5. The Department by rule or regulation may provide for registration and registration renewal ofcertain air contaminant sources in lieu ofthe permit requiredpursuantto thissection.

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

sources from thepermitorregistration requirementsset forth in thissectionwhen the Department makes afinding that the exemption ofsuch sources ofair contaminantswillnotbecontraryto section23-25-01.1.

Interstate transport: Section 110(a)(2)(D) of the CAA reqmres 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 ofthe NAAQS, and 3) interfering with measures

7

### required to prevent significant deterioration or interfering with the implementation of plans relatedtoregionalhazeorvisibilityin anotherState.

Thefollowingregulations andSIPprovisions addressinterstatetransport:

NDAC 33-15-15 NDAC 33-15-19 NDAC 33-15-25 SIP Section7.8 SIP PreventionofSignificantDeterioration VisibilityProtection RegionalHazeRequirements InterstateTransportofAirPollution NorthDakotaStateImplementationPlanforRegional

Haze (February24, 2010)

NDCC23-25-03 statesthattheDepartmentshall:



### NDCC 23-25-03.6- Provide rules and regulations relating to the construction ofany

new direct or indirect air containment source or modification ofany existing direct or indirect air containment source which the Department determines will prevent the attainmentormaintenanceof anyambientairqualitystandard, andrequire thatpriorto commencing construction or modification ofany such source, the owner or operator thereofshallsubmitsuch information as may be necessary topermit the Department to makesuchdetermination.

A. 

### SignificantContributionRequirementofSection 110(a)(2)(D)(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 ofthe NAAQS in any other state. The state's submissionmust explain whether ornot emissions from the statehave this impact and, if
so, addresstheimpact.

8

### North Dakota submitted this demonstration in April 2009 (see attachments) and EPA approved it on June 3, 2010 (75 FR 31290-31305). Sources in North Dakota do not significantlycontributetononattainmentareasinotherstates.

B. InterferewithMaintenanceRequirementofSection 110(a)(2)(D)

Section 110(a)(2)(D)(i)(I) specifically provides that each state's SIP must contain adequateprovisionsto prohibit airpollutantemissions from withinthe statethatinterfere withmaintenanceoftheNAAQS inanyotherstate. States' submissionmustaddressthis independentrequirement ofthe statute. Thisprovisionrequires evaluation ofimpacts on

areas of other states that are meeting the PM2

.5 

### 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, ifso, address the impact.

NorthDakotasubmittedthis analysisinApril2009(see attachments). EPAapprovedthis portionofthe analysisonNovember22,2010(75 FR71023-71029).

C. PSD sub-elementof110(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 underPart C to prevent significant deterioration ofair quality and requires North Dakota to have in place a prevention of significantdeterminationprogramfor sourcesintheNorthDakota.

The Departmenthas adoptedthe Federal PSD rules byreference as they existonJuly 2, 2010. The Department is in the process of adopting the PSD rules as they exist on January 1, 2012. This will incorporate all existing requirements. The PSD rules require compliance with the PM2.s NAAQS incorporated in NDAC 33-15-02. EPA previously

9

### approved this element ofthe Department's April 2009 analysis on June 3, 2010 (75 FR 31290-31305).

D. Visibilitysub-elementof110(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 otherstate for visibilityprotectionandrequiresNorthDakotato have inplacemeasurestoprotectvisibilityinNorthDakotaClassIareas.

North Dakotahas inplace a SIP to address visibilityimpairmentfor 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 Dakotahavebeen 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 currentplanningperiod. This includes along-term strategy which provides for improvement in the most impaired days and no degradation in the least impaired days. This Regional Haze SIP will satisfy the requirements of the visibility sub-element.

Section 110(a)(2)(D)(ii): InterstateandInternationalTransportProvisions:



### Section 110(a)(2)(D)(ii) requires that each plan include measures that ensure compliance with the applicable requirements of Sections 126 and 115 relating to interstate and international pollution abatement. Section 126(a) ofthe Clean Air Act (CAA) requires each SIP to include provisionsto notifyneighboring statesofpotentialimpactsfrom anew ormodifiedsource.

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:

10

### NDAC-33-15-15-0l.(q)(2)(d)- Senda copy of the notice required in subparagraph c to the applicant, the United States environmentalprotection agency administrator, andto officials and agencies having cognizance over the location where ·the source or modification willbesituatedasfollows: the chiefexecutive of the cityandcounty where the source or modification would be located; any comprehensive regional land use planningagency; andanystate,federal landmanager, orIndian governing bodywhose lands maybesignificantlyaffectedbyemissions from thesourceormodification.



### Similar notification requirements are provided for mmor sources under NDAC 33-15-14- 02.6.b(4).

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

sources that could affect air quality in Canada. The draft PSD permits, the Air Quality Effects Analyses andthe finalpermits are also submittedto EPA.

Adequate personnel, funding and authority: 

### Section 110(a)(2)(E) ofthe CAArequires states to provide for adequate personnel, funding and legal authority under State law to carry out its SIP andrelatedissues.

The authority forthe Departmentto carry outtherequirements ofthe SIP is found inNDCC 23- 25-03 which states:

23-25-03. Powerandduties to theDepartment. TheDepartmentshall:

• Encourage the voluntarycooperation of personsoraffectedgroups to achieve the purposesof this chapter.

• Determine byscientifically oriented fieldstudies andsampling the degree ofair pollution in thestateandtheseveralpartsthereof



### 11

### • Encourage and conduct studies, investigations, and research relating to air pollutionandits causes, effects,prevention, abatementandcontrol.

• Advise, counsel, and cooperate with otherpublic agencies and with affected groupsandindustries.

• Issue such orders as may be necessary to effectuate thepurposes of this chapter andenforcethesamebyallappropriateadministrativeand judicialprocedures.

• Provide rules andregulations relating to the construction ofany new direct or indirectaircontaminantsourceormodificationof anyexistingdirect orindirect air containment source which the Department determines will prevent the attainmentormaintenanceof anyambientairqualitystandards, andrequire that prior to commencing construction ormodification of anysuch source, the owner

oroperatorthereof shallsubmitsuch information as may be necessary topermit theDepartmentto makesuchdetermination.

• Establishambientairqualitystandardsforthestatewhich mayvaryaccordingto appropriateareas.

• Formulate andpromulgate emission control requirementsfor the prevention, abatement, and control ofairpollution in the state including achievement of ambientairqualitystandards.

• Hold hearings relating to any aspect or matter in the administration ofthis chapter, andin connection therewith, compelthe attendance of witnesses andthe productionof evidence.

• Require the owneroroperatorof a regulatedaircontainmentsource to establish and maintain such records; make such reports; install, use and maintain such

12

### monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, andprocedures; andprovide such otherinformationasmaybe 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 CleanAirAct, as amended, andthe authorities and responsibilities ofwhich are delegatable to the state by the United States environmentalprotectionagency. Such rulesmayincludeanyandallenforceable ambient standards, emission limitations, and other control measures, means, techniques, oreconomic incentives such asfees, marketablepermits, andactions ofemission rights asprovided by the Act. The Department shall develop and implementsuchfederalprograms 

## iftheDepartmentdetermines there is a benefit
to thestate.

• Provide by rules a programfor implementing lead-based paint remediation training, certification andperformance requirements in accordance with title 40, Code of FederalRegulations,part 745, sections220, 223, 225, 226, 227and233.

In addition,NDAC 33-15-01-03 states:



### NDAC33-15-01-03. Authority. TheNorth DakotaStateDepartmentof Health has been authorizedtoprovide andadminister this article under theprovisions of North Dakota Century Code chapter23-25.

The provisions ofthe SIP are carried outby the Department ofHealth. The only portion ofthe SIP that has beendelegatedis approval ofopenburningrequests. Several local Health Districts have been delegatedthis authority. There are no other agencies, departments orlocal units that havebeendelegatedauthorityto develop anyportionofthe SIP.

13

### 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 ofemissions emitted. Fees are collected annuallyfrombothmajorsources andminorsources. In addition, fees are chargedforreviewing applications for the construction ofnew ormodified sources. Title V fees are adjusted annually
to matchthe changeinthe consumerpriceindex.

The Department does not anticipate any unusual amount of construction of new significant emission sources ofPM2
.5

### during thenext five years. Therefore, no additionalpersonnel will be requiredto assure compliancewith the PM2
.5

### NAAQS. The Departmentcurrentlyhas 11 people dedicatedtopermittingofnewormodified sourcesofairpollutionandthe enforcementofthe air pollutioncontrolrules. Inaddition, another5people arededicatedtomonitoringairquality.

NDCC 23-25-04.2providesthe statutoryauthorityforcollectingfees.



### NDCC 23-25-04.2, Fees

- Deposit in operatingfund. The Department by rule or regulation mayprescribe andprovidefor thepaymentandcollection of reasonablefees for the issuance ofpermits or registration certificates. The permit or registration certificatefees must be based on the anticipated cost of filing andprocessing the application, oftaking action on the requestedpermit or registration certificate, and conducting an inspectionprogram to determine compliance or noncompliance with the permit or registration certificate. Any moneys collected forpermit or registrationfees
must be deposited in the Department operatingfund in the state treasury andmust be spentsubjectto appropriationbythe legislativeassembly.

Resources for the operation ofthe airpollution 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 1997 PM2
.5

### NAAQS. The Department has addressed the legal authorityto collectfees necessaryto implementthe airpollutioncontrolprogramin section 2.11 oftheSIP.

14

### The regulations that control emissions ofPM2
.5 

### are described in the section titled "Emission limitsandothercontrolmeasures".

Stationary source monitoring system: Section 110(a)(2)(F) ofthe CAA requires states to establish a systemto monitoremissions from stationary sources and to submitperiodic emission reports.

Thefollowing Stateregulationsrequiremonitoringofemissionsfrom stationarysources:

NDAC 33-15-14-02.9 NDAC 33-15-14-03.6 NDAC 33-15-14-06.5

Statutory authority for the monitoring IS 

### found m NDCC 23-25-03 which states that the Departmentshall:



### NDCC 23-25-03.10

- Require the owner or operator ofa regulated air containment

source to establish and maintain such records; make such reports; install, use and maintain such monitoring equipment ormethods; sample such emissions in accordance with such methods, atsuch locations, intervals, andprocedures; andprovidesuch other informationas maybe required.

Source surveillance is also addressed in Chapter 8 

### ofthe SIP. This Chapter provides for the permittingofsources,the inspectionofthosepermittedsources, andcompliancedeterminations.

Emergency episodes: Section 110(a)(2)(G) ofthe CAA requires states to provide for authority
to address activities causing imminent and substantial endangerment to public health, including contingencyplansto implementthe emergencyepisodeprovisionsintheirSIPs.

15

### 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 statesthattheDepartment shall:

NDCC23-25-03.5-Issuesuch orders as may be necessary to effectuate thepurposes of this chapter and enforce the same by all appropriate administrative andjudicial procedures.

NDCC 28-32-32 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 publichealth, safetyorwelfare.

In addition, NDCC 23-25-08 states "when an emergency exists requiring immediate action to protect thepublic health andsafety, the Department may, without notice or hearing, issue an order reciting the existence ofsuch emergency and requiring that such action be taken as is necessaryto meetthis emergency."

Ambientmonitoringdatafrom 2006 through2009indicatesthemaximum24-hourPM2

### .s 

### level at any monitoring siteis 54.2**~g/m .**  

### Basedonthe monitoringresults, an EmergencyEpisode Plan forPM2

### .s 

### isunnecessary.

Future SIP revisions: 

### Section 11O(a)(2)(H) ofthe CAArequires statesto have the authority to revise their SIPs in response to changes in the NAAQS, availability ofimproved methods for attainingtheNAAQS, orinresponseto anEPAfindingthatthe SIPis substantiallyinadequate. NDCC23-25-03 statesthatthe Departmentshall:

NDCC 23-25-03.8 -Formulate andpromulgate emission control requirementsfor the prevention, abatementandcontrolof airpollution in this state includingachievementof ambientairqualitystandards.

16

### NDCC 23-25-03.12 

### -Provide by rules anyprocedures 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 UnitedStates environmental protection agency. Such rules may include any andall enforceable ambientstandards, emission limitations, and other control measures, means, techniques, or economic incentivessuch asfees, marketablepermits, andauctions of emissions rights asprovided by theAct. TheDepartmentshalldevelop andimplementsuch asfederalprograms

## if the Departmentdetermines there is abenefitto thestate.



### TheNorthDakota SIP, Section 1.14, commitsthe Departmentto makingthe necessaryrevisions. Section 1.14 states "TheDepartmentwillrevisethis implementationplanas maybe necessaryto take account ofrevisions ofthe National Ambient Air Quality Standards (both primary and secondary) or the availability of improved or more expeditious methods of attaining these standards. TheDepartmentwill alsorevise the implementationplanwheneverthe 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 revision only ifthe finding ofthe Administrator is in accordance with the requirements ofthe Federal CleanAirAct."

Consultation with government officials: 

### Section 110(a)(2)(J) ofthe CAA requires states to provide aprocess for consultation with local governments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relativeto consultation.

North Dakota has no transportation control plans, maintenance plans or nonattainment areas. For preconstruction review, the public participation procedures ofNDAC 33-15-14-02.6 are followed for minor sources. For sources subject to PSD review, the public participation

17

### procedures in paragraph (q) ofNDAC 33-15-15-01.2 are followed. Both NDAC 33-15-14-02.6 and 33-15-15-01.2(q) require notification ofthe chiefexecutive ofthe city orcounty a source is proposing to locate, anyregional landuse planning agency, and any state, federal landmanager

or Indian body whose lands will be significantly affected by a proposed source's emissions. ConsultationwiththeFLMs for PSDprojects is accomplishedin accordance with40 CFR52.21 (p) which is incorporatedby reference into NDAC 33-15-15-01.2. Forenforcement orders, the requirements of NDCC 23-25-08 and NDCC 28-32 are followed. Consultation with other governmentagenciesis addressedinChapter 10 ofthe SIP. ThisChapterofthe SIP commitsthe Department to consultation with adjacent state, local government and other state agencies whenevera SIPrevisionisrequired.



### Public notification: Section 110(a)(2)(J) ofthe CAAfurtherrequires statesto notify the public ifNAAQS are exceeded in an area and to enhance public awareness ofmeasures that can be takentopreventexceedances.

The North Dakota SIP, Section 6.9, commits the Department to notification ofthe public, on a regularbasis, wheneveran ambient air quality standardis exceeded. Thepublic willbe advised ofthe potential health effects, measures which can be taken to prevent future exceedances, and waystheycanparticipateintheregulatoryandothereffortsto improve airquality. Theauthority for this notification is found inNDCC 23-25-06. In addition, NDAC 33-15-11-03.1 requiresthe 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 ofPart C relatedto prevention ofsignificantdeterioration andvisibility protection.

The Department has adopted the Federal PSD rules by reference as they exist on July 2, 2010. The Department is in the process ofadopting the PSD rules as they exist on January 1, 2012. This will incorporate all existing requirements for PM2
.5
. 

### Both ofthese PSD rule revisions

18

### require compliance with the 

### PM25 

### NAAQS. The "Tailoring Rule" for greenhouse gases has alsobeenadoptedintoNorthDakota'sPSDrules (April2011). PSD applicantsmustaddressany applicablerequirementsfor greenhousegases.

North Dakotahas in place a SIP to address visibility for major source (PSD)permitting (NDAC 33-15-15), specificvisibilityimpairment (RAVI), andplumeblight (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. That plan addresses any visibility impacts. This includes a long-term strategy which provides for improvementinthemostimpaireddaysandnodegradationinthe leastimpaireddays.



### Air quality modeling/data: Section 110(a)(2)(K) requires SIPs to provide for the performance ofairqualitymodelingforpredictingeffects onairqualityofemissions ofanyNAAQSpollutant and the submissionofsuchdatatoEPAuponrequest.

Airqualitymodelingis addressedin Section7.7 oftheNorthDakota SIP. This sectioncommits 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 modelinguponrequest.

Modelingforminorsourcesis addressedinNDAC 33-15-14-02.4whilemodelingformajorPSD

sourcesis address in40CFR52.21(k), 

### (1), (m), (n) and (o) as incorporatedintoNDAC 33-15-15- 01.2. AuthorityforrequiringmodelingisinNDCC23-25-03 which statestheDepartmentshall:



### NDCC23-25-03-02

- Determine byscientificallyoriented fieldstudies andsampling the degreeof airpollution in thestateandtheseveralpartsthereof

and

19

### NDCC 23-25-03-12

- Provide by rules andprocedures 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 thestate bythe UnitedStatesEnvironmental ProtectionAgency. Such rules may include any andallenforceable ambientstandards, emissions limitations, and other control measures, means, techniques, or economic incentivessuch asfees, marketablepermits, andauctions of emissions rights asprovided by theAct. The Departmentshall develop andimplementsuchfederalprograms 

## ifthe Departmentdetermines there is abenefitto thestate.

Permitting fees: 

### Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to cover the cost ofreviewing, acting upon, implementing and enforcing a permituntil such fee requirementis supersededbyEPAapproval ofafee programunderTitleV oftheCleanAirAct.

NDAC 33-15-23, Fees, establishes fees for processing Permit to Construct applications, annual operating fees for minor sources and fees for major sourcesunderthe Title V 

### Permitto Operate program. These fees are used for reviewing, approving, implementing and enforcing apermit. The authorityforthefees is found inNDCC 23-25-04.2.

NDCC 23-25-04.2. Fees

- Deposit in operatingfund: The Department by rule or regulation mayprescribeandprovidefor thepaymentandcollection ofreasonablefees for the issuance of permits or registration certificates. The permit or registration certificatefeesfor the issuance ofthe anticipated cost of filing andprocessing the application, oftaking action on the requestedpermit or registration certificate, and conducting an inspectionprogram to determine compliance or noncompliance with the permit or registration certificate. Any moneys collected forpermit or registrationfees
must be deposited in the Department operatingfund in the state treasury andmust be spentsubjectto appropriation bythe legislativeassembly.



### 20

### 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 programreceivedfull approvalfromEPAeffectiveAugust 16, 1999 (64FR32433).



### Consultation/participation by affected local entities: Section 11

### O(a)(2)(M) requires SIPs to provide for consultation and participation in SIP development by local political subdivisions affectedbythe SIP.

No other state or local entities are responsible for developing the SIP. Implementation and enforcement ofopen burning request approvals has been delegated to several local healthunits. The Departmentretainsresponsibilityfor ensuring adequate implementationofall SIP revisions. Nootherportions ofthe SIPhavebeendelegatedto otherorganizations.

TheNorthDakotaSIP, Chapter 10, addressestheconsultationprocessthe Departmentwilluse to coordinatewithlocalpolitical subdivisionsthatare affectedbyany SIP revisions. NDCC23-25- 03 alsorequiresconsultationbystatingthattheDepartmentshall:



### NDCC 23-25-03.4 -Advise, consultandcooperate with otherpublic agencies andwith affectedgroupsandindustries.

Intergovernmental cooperation, Section 10 ofNorth Dakota's SIP, addresses the process for sharinginformationandworkingwithothergovernmentagencies.

Regarding SIP andrule 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 hearingto considerandrecommendthe adoption, amendment, orrepeal ofrules,regulations, and standards as providedinthis chapter. Noticeofsuchpublichearingorhearingsmustbegivenby publication ofa notice ofsuch hearing or hearings in each ofthe official county newspapers withinthe state ofNorthDakotabyatleasttwopublications, oneweekapart, the lastpublication

21

### being at least thirty days priorto the first hearing. The hearing orhearings mustbe 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 ofthis chapter."

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

StateBoards: 

### Section 128 requiresthat anyboardorbodythat approvespermits orenforcement orders musthave at least amajority ofits members whorepresent the public interest and do not derive any significant portion oftheir income from persons subject to permits or enforcement actions underthe CleanAirAct. In addition, members ofsuchboards orbodies, orthe head of

an executiveagencywith similarpowers,mustadequatelydiscloseanyconflictofinterest.

InNorth Dakotathere are no boards orbodies that approve permits orenforcementorders. The StateHealthOfficeris theheadoftheNorthDakotadepartmentofHealthwhich includesthe Air Pollution Controlprogram. NDCC 23-01-05 states "The StateHealthOfficermaynotengage in any occupation orbusiness thatmayconflictwiththe statutoryduties ofthe StateHealthOfficer

...". NDCC 23-01-05 is containedinAppendixBofthe SIP. TheDepartmenthas committedto revise the SIP to require that any conflict of interest by anyone that approves permits or enforcementactionsmustbedisclosed. (Seeattachment22).

22

### Attachments
1. NDCC23-25
2. NDCC28-32
3. NDCC 23-01
4. NDAC 33-15-01
5. NDAC 33-15-02
6. NDAC 33-15-03
7. NDAC 33-15-04
8. NDAC 33-15-05
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 33-15-21
18. NDAC 33-15-22
19. NDAC 33-15-23
20. NDAC 33-15-25
23

### 21. InterstateTransportSubmittal
22. Section 128 CommitmentLetter
23. PublicParticipationDocumentation

a. AbbreviatedPublicNotice
b. FullPublicNotice

c. Press Release
d. WebsiteNotice

e. AffidavitofPublication
f. 

### InvoiceofPublication

g. ListofHearingattendees
h. Hearingtranscript

1. 

### ResponsetoPublicComments
J. 

### CertificationofHearing

24

### CHAPTER 23-25 AIR POLLUTION CONTROL
23-25-01. Definitions. For purposes ofthis chapter, the following words and phrases are defined: 1. "Air contaminant" means any solid, liquid, gas, or odorous substance, or any combination thereof. 2. "Air pollution" means the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as is or may be injurious to human health, welfare, or property, animal or plant life, or which unreasonably interferes with the enjoyment oflife or property. 3. "Air quality standard" means an established concentration, exposure time, or frequency of occurrence of a contaminant or multiple contaminants in the ambient air which may not be exceeded. 4. "Ambient air" meansthe surrounding outside air. 5. "Asbestos abatement" means any demolition, renovation, salvage, repair, or construction activity which involves the repair, enclosure, encapsulation, removal, handling, ordisposal ofmorethan three squarefeet [0.28 square meter] orthree linear feet [0.91 meter] of friable asbestos material. Asbestos abatement also means any inspections, preparation of management plans, and abatement project design for both friable and nonfriable asbestos material. 6. "Asbestos contractor" means any partnership, firm, association, corporation, limited liability company, or sole proprietorship that contracts to perform asbestos abatement for another. 7. "Asbestos worker" means any person engaged in the abatement of more than three square feet [0.28 square meter] or three linear feet [0.91 meter] of friable asbestos material, exceptfor individuals engaged in abatement attheir private residence. 8. "Emission" means a release ofair contaminants intothe ambientair. 9. "Emission standard" means a limitation on the release of any air contaminant into the ambient air. 10. "Friable asbestos material" means any material containing more than one percent asbestos that hand pressure or mechanical forces expected to act on the material can crumble, pulverize, or reduce to powderwhen dry. 11. "Indirect air contaminant source" means any facility, building, structure, or installation, or any combination thereof, which can reasonably be expected to cause or induce emissions ofair contaminants. 12. "Lead-based paint" means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram persquare centimeter or morethan 0.5 percent byweight. 13. "Person" means any individual, corporation, limited liability company, partnership, firm, association, trust, estate, public or private institution, group, agency, political subdivision ofthis state, any other state or political subdivision or agency thereof, and any legal successor, representative agency, oragency ofthe foregoing.
23-25-01.1. Declaration of public policy and legislative intent. It is hereby declared to be the public policy of this state and the legislative intent of this chapter to achieve and maintain the best air quality possible, consistent with the best available control technology, to protect human health, welfare, and property, to prevent injury to plant and animal life, to promote the economic and social development ofthis state, to foster the comfort and convenience ofthe people, and to facilitate the enjoyment ofthe natural attractions ofthis state.
23-25-02. State air pollution control agency -Advisory council. 1. The state department of health, hereinafter referred to as the department, is hereby designated as the agency to administer and coordinate a statewide program of air pollution control consistentwith the provisions ofthis chapter.

Page No.12. There is hereby established an air pollution control advisory council, hereinafter referred to as the advisory council, of nine members to includethe state health officer, the state geologist, the director of the department of transportation, and six other members to be appointed by the governor, one ofwhom must be a representative of county or municipal government, one a representative ofthe solid fuels industry, one a representative of the fluid and gas fuels industry, one a representative of the environmental sciences, and two appointed at large. 3. The term of office for the appointed members of the advisory council must be six years, but ofthose four first appointed, two shall serve for two years and two for four years, and the lengths oftheirterms must be designated bythe governor at the time of appointment. 4. The advisory council shall select its own chairman from among its members. The state health officer, state geologist, and director of the department of transportation each may designate a principal deputy or assistant to act in the officer's place and stead. The chief sanitary engineer of the state department of health, or that officer's designated assistant, must be the principal administrative officerofthe council. 5. The advisory council shall hold at least one regular meeting each year, and such additional meetings as the chairman deems necessary, at atime and place to be fixed by the chairman. Special meetings must be called by the chairman.on the written request ofanythree members. Five members constitute aquorum. 6. 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 ofthis chapter and may make recommendations on its own initiative to the departmentconcerning the administration ofthis chapter.
23-25-03. Powerand duties ofthe department. The department shall: 1. Encourage the voluntary cooperation of persons or affected groups to achieve the purposes ofthis chapter. 2. Determine by scientifically oriented field studies and sampling the degree of air pollution in the state and the several partsthereof. 3. Encourage and conduct studies, investigations, and research relating to air pollution and its causes, effects, prevention, abatement, and control. 4. Advise, consult, and cooperate with other public agencies and with affected groups and industries. 5. Issue such orders as may be necessaryto effectuatethe purposes ofthis chapter and enforce the same by all appropriate administrative andjudicial procedures. 6. Provide rules and regulations relating to the construction of any new direct or indirect air contaminant source or modification ofany existing direct or indirect aircontaminant sourcewhich the department determineswill preventthe attainment or maintenance of any ambient air quality standard, and require that priorto 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. 7. Establish ambient air quality standards for the state which may vary according to appropriate areas. 8. Formulate and promulgate emission control requirements for the prevention, abatement, and control of air pollution in this state including achievement of ambient airquality standards.
Page No.29. Hold hearings relating to any aspect or matter in the administration ofthis chapter, and in connection therewith, compel the attendance of witnesses and the production of evidence. 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. 11. Provide by rules and regulations a procedure for the handling of applications for the granting of a variance to any person who owns or is in control of any plant, establishment, process, or equipment. The granting of a variance is not a right ofthe applicant but must be in the discretion ofthe department. 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 ofemissions rights as provided bythe Act. The department shall develop and implement such federal programs if the departmentdeterminesthere is a benefitto the state. 13. 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, part745, sections 220, 223, 225, 226, 227, and 233. After consultation with the advisory council, the department is empowered to adopt, amend, and repeal rules and regulations implementing and consistentwith this chapter.
23-25-03.1. Licensing of asbestos and lead-based paint contractors and certification ofasbestos and lead-based paintworkers. The department is charged with the responsibility ofadministering and enforcing a licensing program for asbestos contractors and lead-based paint contractors and a certification program for asbestos workers and lead-based paint workers and is given and charged with the following powers and duties: 1. To require training of, and to examine, asbestos workers and lead-based paint workers. 2. To establish standards and procedures for the licensing of contractors, and the certification of asbestos workers engaging in the abatement of friable asbestos materials or nonfriable asbestos materials that become friable during abatement, and to establish performance standards for asbestos abatement. The performance standards will be as stringent as those standards adopted by the United States environmental protection agency pursuant to section 112 ofthe Federal Clean AirAct, as amended. 3. To establish standards and procedures for the licensing of contractors and the certification of lead-based paint workers engaging in the abatement of lead-based paint and to establish performance standards for lead-based paint abatement in accordance with title 40, Code of Federal Regulations, part 745, sections 220, 223, 225, 226, 227, and 233. 4. To issue certificates to all applicants who satisfy the requirements for certification under this section and any rules under this section, to renew certificates, and to suspend or revoke certificatesfor cause after notice and opportunityfor hearing. 5. To establish an annual fee and renewal fees for licensing asbestos contractors and lead-based paint contractors and certifying asbestos and lead-based paint workers and to establish examination fees for asbestos and lead-based paint workers under section 23-25-04.2. The annual, renewal, and examination fees for lead-based contractors and workers may not exceed those charged to asbestos contractors and workers.
Page No.36. To establish indoorenvironmental nonoccupational airquality standards for asbestos. 7. To adopt and enforce rules as necessaryforthe implementation ofthis section. For nonpublic employees performing asbestos abatement in facilities or on facility components owned or leased by their employer, only the provisions of rules adopted in accordance with the federalAsbestos Hazard Emergency ResponseAct of 1986 [Pub. 

### L. 99-519; 100 Stat. 2970; 15 U.S.C. 2641 et seq.], as amended, orthe federal CleanAirAct [Pub. 

### L. 95-95; 91 Stat. 685; 42 U.S.C. 7401 et seq.], as amended, apply to this section. This does not include ownership that was acquired solelyto effect ademolition or renovation.
23-25-03.2. Sulfur dioxide ambient air quality standards more strict than federal standards prohibited. The department may not adopt ambient air quality rules or standards for sulfur dioxide that affect coal conversion facilities or petroleum refineries that are more strict than federal rules or standards under the Clean Air Act [42 U.S.C. 7401 et seq.], nor may the department adopt ambient air quality rules or standards for sulfur dioxide that affect these facilities and refineries when there are no corresponding federal rules or standards. Any ambient air quality standards that have been adopted by the department for sulfur dioxide that are more strict than federal rules orstandards underthe CleanAirAct, orforwhich there are no corresponding federal rules or standards, are void as to coal conversion facilities and petroleum refineries. However, the department may adopt rules for dealing with exposures of less than one hour to sulfur dioxide emissions on a source-by-source basis pursuant to any regulatory program for dealing with short-term exposures to sulfur dioxide that may be established under the Clean Air Act. Any intervention levels or standards set forth in the rules, however, may not be more strict than federal levels orstandards recommended oradopted underthe federal program. In adopting the rules, the department shall follow all other provisions of state law governing the department's adoption of ambient air quality rules when there are no mandatory corresponding federal rules orstandards.
23-25-03.3. Requirements for adoption of air quality rules more strict than federal standards. 1. Notwithstanding any other provisions of this title, the department may not adopt air quality rules orstandards affecting coal conversion and associated facilities, petroleum refineries, oroil and gas production and processing facilities which are more strictthan federal rules or standards under the Clean AirAct [42 U.S.C. 7401 et seq.], nor may the department adopt air quality rules or standards affecting such facilities when there are no corresponding federal rules or standards, unless the more strict or additional rules or standards are based on a risk assessment that demonstrates a substantial probability of significant impacts to public health or property, a cost-benefit analysis that affirmatively demonstrates that the benefits of the more stringent or additional state rules and standards will exceed the anticipated costs, and the independent peer reviews required bythis section. 2. The department shall hold a hearing on any rules or standards proposed for adoption under this section on not less than ninety days' notice. The notice of hearing must specify all studies, opinions, and data that have been relied upon by the department and must state that the studies, risk assessment, and cost-benefit analysis that supportthe proposed rules or standards are available at the departmentfor inspection and copying. Ifat any time the department intends to rely upon any studies, opinions, risk assessments, cost-benefit analyses, or other information that were not available from the department when it gave its notice of hearing, the department shall give a new notice of hearing not less than ninety days prior to the hearing that clearly identifies the additional or amended studies, analyses, opinions, data, or information upon which the department intendsto rely and conduct an additional hearing ifthe first hearing has already been held. 3. In this section: a. "Cost-benefit analysis" means both the analysis and the written document that contains:
Page No.4(1) Adescription and comparison ofthe benefits and costs ofthe rule and ofthe reasonable alternatives to the rule. The analysis must include a quantification or numerical estimate of the quantifiable benefits and costs. The quantification or numerical estimate must use comparable assumptions including time periods, specify the ranges of predictions, and explain the margins oferror involved in the quantification methods and estimates being used. The costs that must be considered include the social, environmental, and economic costs that are expected to result directly or indirectly from implementation or compliancewith the proposed rule. (2) A reasonable determination whether as a whole the benefits of the rule justify the costs of the rule and that the rule will achieve the rulemaking objectives in a more cost-effective manner than other reasonable alternatives, including the alternative of no government action. In evaluating and comparing the costs and benefits, the department shall not rely on cost, benefit, or risk assessment information that is not accompanied by data, analysis, or supporting materials that would enable the department and other persons interested in the rulemaking to assess the accuracy, reliability, and uncertaintyfactors applicable to the information. b. "Risk assessment" means both the process used by the department to identify and quantify the degree oftoxicity, exposure, or other risk posed for the exposed individuals, populations, or resources and the written document containing an explanation of how the assessment process has been applied to an individual substance, activity, or condition. The risk assessment must include a discussion that characterizes the risks being assessed. The risk characterization must includethefollowing elements: (1) A description of the exposure scenarios used, the natural resources or subpopulations being exposed, and the likelihood of these exposure scenarios expressed in terms ofprobability. (2) A hazard identification that demonstrates whether exposure to the substance, activity, or condition identified is causally linked to an adverse effect. (3) The major sources of uncertainties in the hazard identification, dose-response, and exposure assessment portions ofthe risk assessment. (4) When a risk assessment involves a choice of any significant assumption, inference, or model, the department in preparing the risk assessmentshall: (a) Rely only upon environmental protection agency-approved air dispersion models. (b) Identifythe assumptions, inferences, and models that materially affect the outcome. (c) Explain the basisfor any choices. (d) Identify any policy decisions orassumptions. (e) Indicate the extent to which any model has been validated by, or conflictswith, empirical data. (f) Describe the impact ofalternative choices of assumptions, inferences, or mathematical models. (5) The range and distribution of exposures and risks derived from the risk assessment. c. The risk assessment and cost-benefit analysis performed bythe department must be independently peer reviewed by qualified experts selected by the air pollution control advisory council. 4. This section applies to any petition submitted to the department pursuant to section 23-01-04.1 that identifies air quality rules or standards affecting coal conversion facilities or petroleum refineries that are more strict than federal rules or standards under the Clean Air Act [42 U.S.C. 7401 et seq.] or for which there are no corresponding federal rules or standards, regardless of whether the department has previously adopted the more strict or additional rules or standards pursuant to section
Page No.523-01-04.1. This section also applies to any petitions filed under section 23-01-04.1 affecting coal conversion facilities or petroleum refineries that are pending on the effective date ofthis section for which new rules or standards have not been adopted, and the department shall have a reasonable amount ofadditional time to comply with the more stringent requirements of this section. To the extent section 23-01-04.1 conflicts with this section, the provisions ofthis section govern. This section does not apply, however, to existing rules that set air quality standards for odor, hydrogen sulfide, visible and fugitive emissions, or emission standards for particulate matter and sulfurdioxide, but does applyto any new rules governing such matters.
23-25-04. Classificationand reporting ofairpollutionsources. 1. After consultation with the advisory council the department, by rule or regulation, may classify air contaminant sources according to levels and types of emissions and other criteria which relate to air pollution and may require reporting for any ofsuch class or classes. Classifications made pursuant to this subsection may apply to the state as a whole orto any designated area ofthe state and must be madewith special reference to effects on health, economic, and social factors and physical effects on property. 2. Any person operating or responsible for the operation of air contaminant sources of any class for which rules and regulations of the department require reporting shall make reports containing information as may be required by the department relevant to air pollution.
23-25-04.1. Permits orregistration. 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 forthe issuance, suspension, revocation, and renewal of any permitswhich it may require pursuantto 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 ofthe 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 chapter43-07. 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 and 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 contraryto section 23-25-01.1.
23-25-04.2. Fees

- Deposit inoperatingfund. 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 offiling and processing the application, oftaking action on the requested permit or registration certificate, and conducting an inspection program to determine compliance or noncompliancewith 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.

Page No.623-25-05. Rightofonsite inspection. 1. Any duly authorized officer, employee, or agent of the department may enter and inspect any property, premise, or place on or at which an air contaminant source is located or is being constructed, installed, or established at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and rules and regulations enforced pursuant thereto. If requested, the owner or operator of the premises shall receive a report setting forth all facts found which relate to compliance status. 2. The department may conduct tests and take samples of air contaminants, fuel, process material, and other materials which affect or may affect emission of air contaminants from any source, and shall have the power to have access to and copy any records required by department rules or regulations to be maintained, and to inspect monitoring equipment located on the premises. Upon request of the department, the person responsible forthe sourceto be tested shall provide necessary holes in stacks or ducts and such other safe and proper sampling and testing facilities exclusive of instruments and sensing devices as may be necessary for proper determination of the emission of air contaminants. If an authorized representative of the department, during the course of an inspection, obtains a sample of air contaminant, fuel, process material, or other material, that representative shall issue a receipt for the sample obtained to the owner or operator of, or person responsible for, the sourcetested. 3. For the purpose of ascertaining the state of compliance with this chapter and any applicable rules, any duly authorized officer, employee, or agent of the department may enter and inspect, at any reasonable time, any property, premises, or place on or at which a lead-based paint remediation activity is ongoing. If requested, the department shall provide to the owner or operator of the premises a report that sets forth all facts found which relate to compliance status.
23-25-06. Confidentiality of records. 1. Any record, report, or information obtained underthis chapter must be available to the public, except that upon a showing satisfactory to the department that the record, report, or information, or particular part thereof, otherthan emission data, to which the department has access underthis chapter, ifmade public, would divulgetrade secrets, the department shall consider the record, report, or information or particular portion thereofconfidential in the administration ofthis chapter. 2. Nothing herein may be construed to prevent disclosure of any report, or record of information to federal, state, or local agencies when necessary for purposes of administration of any federal, state, or local air pollution control laws, orwhen relevant in any proceeding underthis chapter.
23-25-07. Emission control requirements. Repealed byS.L.1975, ch. 231, 

### § 11.
23-25-08. Administrative procedure and judicial review. Any proceeding underthis chapterfor: 1. The issuance or modification of rules and regulations including emergency orders relating to control ofair pollution; or 2. Determining compliancewith rules and regulations ofthe department, must be conducted in accordance with the provisions of chapter 28-32, and appeals may be taken as therein provided. When an emergency exists requiring immediate action to protectthe 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. Notwithstanding any provision of this chapter, such order must be effective immediately, but on application to the department an interested person must be afforded a hearing before the state health council within ten days. On the basis ofsuch hearing,

Page No.7the emergency order must be continued, modified, or revoked within thirty days after such hearing. Except as provided for in this section, notice of any hearing held under this chapter must be issued at leastthirty days priorto the date specified forthe hearing.
23-25-09. Injunction proceedings. Repealed by S.L. 1975, ch. 231, 

### § 11.
23-25-10. Enforcement- Penalties - Injunctions. 1. Any person who willfully violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, is subject to a fine ofnot morethan ten thousand dollars per day perviolation, or by imprisonmentfor not more than one year, or both. Ifthe conviction is for a violation committed after a first conviction ofsuch person underthis subsection, punishment must be by afine of not more than twenty thousand dollars per day per violation, or by imprisonment for not morethan two years, or both. 2. Any person who violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, with criminal negligence as defined by section 12.1-02-02, is subject to a fine of not m_ore than ten thousand dollars perday perviolation, or by imprisonmentfor not morethan six months, or both. 3. Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, upon conviction, is subject to afine of not more than ten thousand dollars perday perviolation, or by imprisonmentfor not morethan six months, or both. 4. Any person who violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, is subjectto a civil penalty not to exceed ten thousand dollars perday perviolation. 5. Without prior revocation of any pertinent permits, the department, in accordance with the laws ofthis state governing injunction or other process, may maintain an action in the name of the state against any person to enjoin any threatened or continuing violation ofany provision ofthis chapter or any permit condition, rule, order, limitation, orotherapplicable requirement implementing this chapter.
23-25-11. Regulation ofodors- Rules. 1. In areas located within a city orthe area overwhich a city has exercised extraterritorial zoning as defined in section 40-47-01.1, a person may not discharge into the ambient airany objectionable odorous air contaminantthat measures seven odor concentration units or higher outside the property boundary where the discharge is occurring. If an agricultural operation as defined by section 42-04-01 has been in operation for more than one year, as provided by section 42-04-02, and the business or residence making the odor complaint was built or established after the agricultural operation was established, the measurement for compliance with the seven odor concentration units standard must be taken within one hundred feet [30.48 meters] of the subsequently established residence, church, school, business, or public building making the complaint rather than at the property boundary of the agricultural operation. The measurement may not be taken within five hundred feet [.15 kilometer] ofthe property boundary ofthe agricultural operation. 2. In areas located outside a city or outside the area over which a city has exercised extraterritorial zoning as defined in section 40-47-01.1, a person may not discharge into the ambient air any objectionable odorous air contaminant that causes odors that

Page No.8measure seven odor concentration units or higher as measured at any ofthe following locations: a. Within one hundred feet [30.48 meters] of any residence, church, school, business, or public building, or within a campground or public park. An odor measurement may not be taken at the residence ofthe owner or operator ofthe source of the odor, or at any residence, church, school, business, or public building, or within a campground or public park, that is built or established within one-half mile [.80 kilometer] ofthe source ofthe odor afterthe source ofthe odor has been built or established; b. At any point located beyond one-half mile [.80 kilometer] from the source ofthe odor, except for property owned by the owner or operator of the source of the odor, or over which the owner or operator of the source of the odor has purchased an odoreasement; or c. Ifa county ortownship has zoned orestablished asetback distancefor an animal feeding operation which is greaterthan one-half mile [.80 kilometer] under either section 11-33-02.1 or 58-03-11.1, or ifthe setback distance under subsection 7 is greaterthan one-half mile [.80 kilometer], measurements for compliance with the seven odor concentration units standard must be taken at the setback distance rather than one-half mile [.80 kilometer] from the facility under subdivision b, except for any residence, church, school, business, public building, park, or campground within the setback distancewhich was built orestablished beforethe animal feeding operation was established, unless the animal feeding operation has obtained an odor easementfrom the preexisting facility. 3. An odor measurement may be taken only with a properly maintained scentometer, by an odor panel, or by another instrument or method approved by the state department of health, and only by inspectors certified by the department who have successfully completed a department-sponsored odor certification course and demonstrated the ability to distinguish various odor samples and concentrations. If a certified inspector measures a violation of this section, the department may send a certified letter of apparent noncompliance to the person causing the apparent violation and may negotiate with the owner or operator for the establishment of an odor management plan and best management practices to address the apparent violation. The department shall give the owner or operatorat leastfifteen daysto implementthe odor management plan. Ifthe odor problem persists, the department may proceed with an enforcement action provided at least two certified inspectors at the same time each measure a violation and then confirm the violation by a second odor measurement taken by each certified inspector, at leastfifteen minutes, but no more than two hours, afterthefirst measurement. 4. A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land in accordance with a nutrient management plan approved by the state department of health. A person is exempt from this section while spreading or applying animal manure or other recycled agricultural material to land owned or leased by that person in accordance with rules adopted by the department.An owner or operator ofa lagoon orwaste storage pond permitted by the department is exempt from this section in the spring from the time when the cover of the permitted lagoon or pond begins to melt until fourteen days after all the ice cover on the lagoon or pond has completely melted. Notwithstanding these exemptions, all persons shall manage their property and systems to minimize the impact ofodors on their neighbors. 5. This section does not apply to chemical compounds that can be individually measured by instruments, other than a scentometer, that have been designed and proven to measure the individual chemical or chemical compound, such as hydrogen sulfide, to a reasonable degree of scientific certainty, and for which the state department of health has established aspecific limitation by rule. 6. For purposes of this section, a public park is a park established by the federal government, the state, or a political subdivision ofthe state in the manner prescribed
Page No.9by law. For purposes ofthis section, a campground is a public or private area of land used exclusively for camping and open to the publicfor afee on a regular or seasonal basis. 7. a. In a county that does not regulate the nature, scope, and location of an animal feeding operation under section 11-33-02, the department shall require that any new animal feeding operation permitted under chapter 61-28 be set back from any existing residence, church, school, business, public building, park, or campground. (1) If there are fewer than three hundred animal units, there is no minimum setback requirement. (2) If there are at least three hundred animal units but no more than one thousand animal units, the setback for any animal operation is one-half mile [.80 kilometer]. (3) If there are at least one thousand one animal units but no more than two thousand animal units, the setback for a hog operation is three-fourths mile [1.20 kilometers] and the setback for any other animal operation is one-half mile [.80 kilometer]. (4) If there are at least two thousand one animal units but no more than five thousand animal units, the setback for a hog operation is one mile [1.60 kilometers] and the setback for any other animal operation is three-fourths mile [1.20 kilometers]. (5) Ifthere are five thousand one or more animal units, the setback for a hog operation is one and one-half miles [2.40 kilometers] and the setback for any otheranimal operation is one mile [1.60 kilometers]. b. The setbacks set forth in subdivision a do not apply if the owner or operator applying for the permit obtains an odor easementfrom the preexisting use that is closer. c. For purposes ofthis section: (1) One mature dairy cow, whether milking ordry, equals 1.33 animal units; (2) One dairy cow, heifer or bull, otherthan an animal described in paragraph 1 equals 1.0 animal unit; (3) One weaned beef animal, whether a calf, heifer, steer, or bull, equals 0.75 animal unit; (4) One cow-calf pair equals 1.0 animal unit; (5) One swine weighing fifty-five pounds [24.948 kilograms] or more equals 0.4 animal unit; (6) One swine weighing less than fifty-five pounds [24.948 kilograms] equals 0.1 animal unit; (7) One horse equals 2.0 animal units; (8) One sheep or lamb equals 0.1 animal unit; (9) Oneturkey equals 0.0182 animal unit; (10) One chicken, otherthan a laying hen, equals 0.008 animal unit; (11) One laying hen equals 0.012 animal unit; (12) One duckequals 0.033 animal unit; and (13) Any livestock not listed in paragraphs 1 through 12 equals 1.0 animal unit per each one thousand pounds [453.59 kilograms] whether single or combined animal weight. 8. A permitted animal feeding operation may expand its permitted capacity by twenty-five percent on one occasion withouttriggering a highersetbackdistance. 9. Neither a county nor a township may regulate or through any means impose restrictions or requirements on animal feeding operations or on other agricultural operations exceptas permitted undersections 11-33-02 and 58-03-11.

Page No. 10

### CHAPTER 28-32 ADMINISTRATIVEAGENCIES PRACTICEACT
28-32-01. Definitions. In this chapter, unlessthe context or subject matter otherwise provides: 1. "Adjudicative proceeding" means an administrative matter resulting in an agency issuing an order after an opportunity for hearing is provided or required. An adjudicative proceeding includes administrative matters involving a hearing on a complaint against a specific-named respondent; a hearing on an application seeking a right, privilege, or an authorization from an agency, such as a ratemaking or licensing hearing; or a hearing on an appeal to an agency. An adjudicative proceeding includes reconsideration, rehearing, or reopening. Once an adjudicative proceeding has begun, the adjudicative proceeding includes any informal disposition of the administrative matter undersection 28-32-22 oranotherspecificstatute or rule, unlessthe matter has been specifically converted to another type of proceeding under section 28-32-22. An adjudicative proceeding does not include a decision or order to file or not to file a complaint, or to initiate an investigation, an adjudicative proceeding, or any other proceeding before the agency, or another agency, or a court. An adjudicative proceeding does not include a decision or order to issue, reconsider, or reopen an order that precedes an opportunity for hearing or that under another section of this code is not subjectto review in an adjudicative proceeding.An adjudicative proceeding does not include rulemaking underthis chapter. 2. "Administrative agency" or "agency" means each board, bureau, commission, department, or other administrative unit ofthe executive branch of state government, including one or more officers, employees, or other persons directly or indirectly purporting to act on behalf or under authority of the agency. An administrative unit located within or subordinate to an administrative agency must be treated as part of that agency to the extent it purports to exercise authority subject to this chapter. The term administrative agency does not include: a. The office of management and budget except with respect to rules made under section 32-12.2-14, rules relating to conduct on the capitol grounds and in buildings located on the capitol grounds under section 54-21-18, rules relating to the classified service as authorized under section 54-44.3-07, and rules relating to state purchasing practices as required undersection 54-44.4-04. b. The adjutant general with respect to the department ofemergency services. c. The council on the arts. d. The state auditor. e. The department of commerce with respect to the division of economic development and finance. f. The dairy promotion commission. g. The education factfinding commission. h. The educational technology council. i. The board ofequalization. j. The board ofhighereducation. k. The Indian affairs commission. 

### I. The industrial commission with respect to the activities of the Bank of North Dakota, North Dakota housing finance agency, public finance authority, North Dakota mill and elevator association, North Dakota farm finance agency, the North Dakotatransmission authority, and the North Dakota pipeline authority. m. The department of corrections and rehabilitation except with respect to the activities ofthe division ofadult services underchapter 54-23.4. n. The pardon advisory board. o. The parks and recreation department. p. The parole board. q. The statefair association.

Page No.1r. The attorney general with respect to activities of the state toxicologist and the state crime laboratory. s. The board of university and school lands except with respect to activities under chapter47-30.1. 

### t. The administrative committee on veterans' affairs except with respect to rules relating to the supervision and government of the veterans' home and the implementation ofprograms orservices provided bytheveterans' home. u. The industrial commission with respect to the lignite research fund except as required undersection 57-61-01.5. v. The attorney general with respectto guidelines adopted under section 12.1-32-15 for the risk assessment of sexual offenders, the risk level review process, and public disclosure ofinformation undersection 12.1-32-15. w. The commission on legal counsel for indigents. x. The attorney general with respect to twenty-four seven sobriety program guidelines and program fees. 3. "Agency head" means an individual or body of individuals in whom the ultimate legal authority ofthe agency is vested by law. 4. "Complainant" means any person who files a complaint before an administrative agency pursuant to section 28-32-21 and any administrative agency that, when authorized by law, files such a complaint before such agency orany otheragency. 5. "Hearing officer" means any agency head or one or more members of the agency head when presiding in an administrative proceeding, or, unless prohibited by law, one or more other persons designated by the agency head to preside in an administrative proceeding, an administrative lawjudge from the office of administrative hearings, or any other person duly assigned, appointed, or designated to preside in an administrative proceeding pursuantto statute or rule. 6. "License" means a franchise, permit, certification, approval, registration, charter, or similarform ofauthorization required by law. 7. "Order" means any agency action ofparticular applicability which determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons. Theterm does not include an executive order issued bythe governor. 8. "Party" means each person named or admitted as a party or properly seeking and entitled as of right to be admitted as a party. An administrative agency may be a party. In a hearing forthe suspension, revocation, or disqualification ofan operator's license under title 39, the term may include each city and each county in which the alleged conduct occurred, but the city or county may not appeal the decision ofthe hearing officer. 9. "Person" includes an individual, association, partnership, corporation, limited liability company, state governmental agency or governmental subdivision, or an agency of such governmental subdivision. 10. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is ofconsequence to the determination ofthe administrative action more probable or less probable than itwould bewithoutthe evidence. 11. "Rule" meansthewhole or a part ofan agency statement ofgeneral applicabilitywhich implements or prescribes law or policy or the organization, procedure, or practice requirements of the agency. The term includes the adoption of new rules and the amendment, repeal, or suspension ofan existing rule. Theterm does not include: a. A rule concerning only the internal management of an agency which does not directly or substantially affectthe substantive or procedural rights or duties ofany segment ofthe public. b. A rule that sets forth criteria or guidelines to be used by the staff of an agency in the performance of audits, investigations, inspections, and settling commercial disputes or negotiating commercial arrangements, or in the defense, prosecution, orsettlement ofcases, ifthe disclosure ofthe statementwould: (1) Enable lawviolatorsto avoid detection; (2) Facilitatedisregard of requirements imposed by law; or
Page No.2(3) Give a clearly improper advantage to persons who are in an adverse position to the state. c. A rule establishing specific prices to be charged for particular goods or services sold by an agency. d. A rule concerning only the physical servicing, maintenance, or care of agency-owned oragency-operated facilities or property. e. A rule relating only to the use of a particularfacility or property owned, operated, or maintained bythe state or any of its subdivisions, ifthe substance ofthe rule is adequately indicated by means of signs or signals to persons who use the facility or property. f. A rule concerning only inmates of a correctional or detention facility, students enrolled in an educational institution, or patients admitted to a hospital, ifadopted bythatfacility, institution, or hospital. g. A form whose contents or substantive requirements are prescribed by rule or statute orare instructionsforthe execution or use ofthe form. h. An agency budget. i. An opinion ofthe attorney general. j. A rule adopted by an agency selection committee undersection 54-44.7-03. k. Any material, including a guideline, interpretive statement, statement of general policy, manual, brochure, or pamphlet, which is explanatory and not intended to havethe force and effect of law.
28-32-02. Rulemaking power ofagency - Organizational rule. 1. The authority of an administrative agency to adopt administrative rules is authority delegated by the legislative assembly. As part of that delegation, the legislative assembly reserves to itself the authority to determine when and if rules of administrative agencies are effective. Every administrative agency may adopt, amend, or repeal reasonable rules in conformitywith this chapter and any statute administered or enforced bythe agency. 2. In addition to other rulemaking requirements imposed by law, each agency may include in its rules a description ofthat portion of its organization and functions subject to this chapter and may include a statement of the general course and method of its operations and how the public may obtain information or make submissions or requests.
28-32-03. Emergency rules. 1. If the agency, with the approval of the governor, finds that emergency rulemaking is necessary, the agency may declare the proposed rule to be an interim final rule effective on a date no earlier than the date of filing with the legislative council ofthe notice required by section 28-32-10. 2. A proposed rule may be given effect on an emergency basis under this section if any ofthe following grounds exists regarding that rule: a. Imminent peril threatens public health, safety, orwelfare, which would be abated by emergency effectiveness; b. A delay in the effective date of the rule is likely to cause a loss of funds appropriated to support aduty imposed by law upon the agency; c. Emergency effectiveness is reasonably necessary to avoid a delay in implementing an appropriations measure; or d. Emergency effectiveness is necessaryto meet a mandate offederal law. 3. A final rule adopted after consideration of all written and oral submissions respecting the interim final rule, which is substantially similar to the interim final rule, is effective as ofthe declared effective date ofthe interim final rule. 4. The agency's finding, and a brief statement of the agency's reasons for the finding, must be filed with the legislative council with the final adopted emergency rule. 5. The agency shall attemptto make interim final rules known to personswho the agency can reasonably be expected to believe may have a substantial interest in them. As
Page No.3used in this subsection, "substantial interest" means an interest in the effect of the rules which surpasses the common interest of all citizens. An agency adopting emergency rules shall comply with the notice requirements of section 28-32-10 which relate to emergency rules and shall provide notice to the chairman of the administrative rules committee of the emergency status, declared effective date, and grounds for emergency status of the rules under subsection 2. When notice of emergency rule adoption is received, the legislative council shall publish the notice and emergency rules on itswebsite. 6. An interim final rule is ineffective one hundred eighty days after its declared effective date unlessfirst adopted as afinal rule.
28-32-04. Repeal orwaiverofrules from federal guidelines. 1. An agency shall repeal or amend any existing rule that was adopted from federal guidelines and which is not relevantto state regulatory programs. 2. An agency may not adopt rules from federal guidelines which are not relevant to state regulatory programswhen developing or modifying programs. 3. An agency shall seek a waiver from the appropriate United States agency when the United States agency is evaluating current programs or delegating or modifying programs to relieve the agency from complying with or adopting rules that are not relevantto state regulatory programs.
28-32-05. Adoption by reference ofcertain rules. 1. When adopting rules, an agency shall adopt by reference any applicable existing permit or procedural rules that may be adapted for use in a new or existing program. 2. An agency shall seek authorization from the appropriate United States agency to adopt by reference applicable existing permit or procedural rules that may be adapted for use in a new or existing program when the United States agency is delegating or modifying a program.
28-32-06. Force and effectof rules. Upon becoming effective, rules have the force and effect of law until amended or repealed by the agency, declared invalid by a final court decision, suspended or found to be void by the administrative rules committee, or determined repealed by the legislative council because the authorityforadoption ofthe rules is repealed ortransferred to anotheragency.
28-32-07. Deadlinefor rules to implementstatutory change. Any rule change, including a creation, amendment, or repeal, made to implement a statutory change must be adopted and filed with the legislative council within nine months ofthe effective date ofthe statutory change. Ifan agency needs additional time forthe rule change, a request for additional time must be made to the legislative council. The legislative council may extend the time within which the agency must adopt the rule change if the request by the agency is supported by evidence thatthe agency needs moretimethrough no deliberatefault of its own.
28-32-08. Regulatory analysis. 1. An agency shall issue a regulatory analysis ofa proposed rule if: a. Within twenty days afterthe last published notice date ofa proposed rule hearing, a written request for the analysis is filed by the governor -or a member of the legislative assembly; or b. The proposed rule is expected to have an impact on the regulated community in excess of fifty thousand dollars. The analysis under this subdivision must be available on or before the first date of public notice as provided for in section 28-32-10. 2. The regulatory analysis mustcontain:

Page No.4a. A description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs ofthe proposed rule and classesthatwill benefitfrom the proposed rule; b. Adescription ofthe probable impact, including economic impact, ofthe proposed rule; c. The probable costs to the agency ofthe implementation and enforcement ofthe proposed rule and any anticipated effect on state revenues; and d. A description of any alternative methods for achieving the purpose of the proposed rule thatwere seriously considered by the agency and the reasons why the methodswere rejected in favor ofthe proposed rule. 3. Each regulatory analysis must include quantification of the data to the extent practicable. 4. The agency shall mail or deliver a copy ofthe regulatory analysis to any person who requests a copy ofthe regulatory analysis. The agency may charge afee for a copy of the regulatory analysis as allowed under section 44-04-18. 5. Ifrequired undersubsection 1, the preparation and issuance ofa regulatory analysis is a mandatory duty of the agency proposing a rule. Errors in a regulatory analysis, including erroneous determinations concerning the impact ofthe proposed rule on the regulated community, are not a ground upon which the invalidity of a rule may be asserted ordeclared.
28-32-08.1. Rules affecting small entities - Analysis - Economic impact statements

- Judicial review. 1. As used in this section: a. "Small business" means a business entity, including its affiliates, which: (1) Is independently owned and operated; and (2) Employs fewer than twenty-five full-time employees or has gross annual sales oflessthan two million five hundred thousand dollars; b. "Small entity" includes small business, small organization, and small political subdivision; c. "Small organization" means any not-for-profit enterprise that is independently owned and operated and is not dominant in its field; and d. "Small political subdivision" means a political subdivision with a population of less than five thousand. 2. Before adoption of any proposed rule, the adopting agency shall prepare a regulatory analysis in which, consistent with public health, safety, and welfare, the agency considers utilizing regulatory methods that will accomplish the objectives of applicable statutes while minimizing adverse impact on small entities. The agency shall consider each of the following methods of reducing impact of the proposed rule on small entities: a. Establishment of less stringent compliance or reporting requirements for small entities; b. Establishment of less stringent schedules or deadlines for compliance or reporting requirements for small entities; c. Consolidation or simplification of compliance or reporting requirements for small entities; d. Establishment of performance standards for small entities to replace design or operational standards required in the proposed rule; and e. Exemption ofsmall entities from all or any part of the requirements contained in the proposed rule. 3. Before adoption of any proposed rule that may have an adverse impact on small entities, the adopting agency shall prepare an economic impact statement that includes consideration of: a. The small entities subjectto the proposed rule; b. The administrative and other costs required for compliance with the proposed rule;
Page No.5c. The probable cost and benefit to private persons and consumers who are affected bythe proposed rule; d. The probable effectofthe proposed rule on state revenues; and e. Any less intrusive or less costly alternative methods of achieving the purpose of the proposed rule. 4. For any rule subject to this section, a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements ofthis section. A small entity seeking judicial review under this section must file a petition for judicial review within one year from the date of final agency action. 5. This section does not apply to any agency that is an occupational or professional licensing authority, nor doesthis section apply to the following agencies or divisions of agencies: a. Council on the arts. b. Beefcommission. c. Dairy promotion commission. d. Dry bean council. e. Highway patrolmen's retirement board. f. Indian affairs commission. g. Board for Indian scholarships. h. State personnel board. i. Potato council. j. Board ofpublic school education. k. Real estatetrust account committee. 

### I. Seed commission. m. Soil conservation committee. n. Oilseed council. o. Wheat commission. p. State seed arbitration board. q. North Dakota lottery. 6. This section does notapplyto rules mandated byfederal law. 7. The adopting agency shall provide the administrative rules committee copies of any regulatory analysis or economic impact statement, or both, prepared underthis section when the committee is considering the associated rules.
28-32-08.2. Fiscal notesforadministrative rules. When an agency presents rules for administrative rules committee consideration, the agency shall provide a fiscal note or a statement in its testimony that the rules have no fiscal effect. A fiscal note must reflect the effect of the rules changes on state revenues and expenditures, including any effect on funds controlled bythe agency.
28-32-09. Takings assessment. 1. An agency shall prepare awritten assessment ofthe constitutional takings implications of a proposed rule that may limit the use of private real property. The agency's assessment must: a. Assess the likelihood that the proposed rule may result in a taking or regulatory taking. b. Clearly and specifically identifythe purpose ofthe proposed rule. c. Explain whythe proposed rule is necessaryto substantially advance that purpose and why no alternative action is available that would achieve the agency's goals while reducing the impact on private propertyowners. d. Estimate the potential cost to the government if a court determines that the proposed rule constitutes ataking or regulatorytaking. e. Identify the source of payment within the agency's budget for any compensation that may be ordered.

Page No.6f. Certify that the benefits ofthe proposed rule exceed the estimated compensation costs. 2. Any private landowner who is or may be affected by a rule that limits the use of the landowner's private real property may request in writing thatthe agency reconsiderthe application or need for the rule. Within thirty days of receiving the request, the agency shall consider the request and shall in writing inform the landowner whether the agency intends to keep the rule in place, modify application ofthe rule, or repeal the rule. 3. In an agency's analysis of the takings implications of a proposed rule, "taking" means the taking of private real property, as defined in section 47-01-03, by government action which requires compensation to the owner of that property by the fifth or fourteenth amendmentto the Constitution ofthe United States or section 16 ofarticle I of the Constitution of North Dakota. "Regulatory taking" means a taking of real property through the exercise ofthe police and regulatory powers of the state which reduces the value of the real property by more than fifty percent. However, the exercise of a police or regulatory power does not effect a taking if it substantially advances legitimate state interests, does not deny an owner economically viable use ofthe owner's land, or is in accordancewith applicable state orfederal law.
28-32-10. Notice of rulemaking - Hearing date. 1. An agency shall prepare afull notice and an abbreviated notice of rulemaking. a. The agency's full notice ofthe proposed adoption, amendment, or repeal ofa rule must include a short, specific explanation ofthe proposed rule and the purpose of the proposed rule, identify the emergency status and declared effective date of any emergency rules, include a determination of whether the proposed rulemaking is expected to have an impact on the regulated community in excess of fifty thousand dollars, identify at least one location where interested persons may review the text of the proposed rule, provide the address to which written comments concerning the proposed rule may be sent, provide the deadline for submission ofwritten comments, provide a telephone number and post-office or electronic mail address at which a copy ofthe rules and regulatory analysis may be requested, and, in the case of a substantive rule, provide the time and place setfor each oral hearing. The agency'sfull notice must be filed with the legislative council, and the agency shall request publication of an abbreviated newspaper publication notice at least once in each official county newspaper published in this state. The noticefiled with the legislative council must be accompanied by a copy ofthe proposed rules. b. The abbreviated newspaper publication of notice must be in adisplay-typeformat with a minimum width of one column of approximately two inches [5.08 centimeters] and a depth of from three inches [7.62 centimeters] to four inches [10.16 centimeters] with a headline describing the general topic of the proposed rules. The notice must also includethe telephone numberoraddressto use to obtain a copy ofthe proposed rules, identification ofthe emergency status and declared effective date of any emergency rules, the address to use and the deadline to submit written comments, and the location, date, and time of the public hearing on the rules. 2. The agency shall mail or deliver a copy ofthe agency's full notice to each member of the legislative assembly whose name appeared as a sponsor or cosponsor of legislation enacted during the most recent session ofthe legislative assemblywhich is being implemented by the proposed rule and to each person who has made a timely request to the agency for a copy of the notice. The agency may mail or otherwise provide a copy of the agency's full notice to any person who is likely to be an interested person. The agency shall mail ordelivera copy ofthe rules to each member of the legislative assembly whose name appeared as a sponsor or cosponsor of legislation enacted during the most recent session ofthe legislative assembly which is being implemented by the proposed rule and to any person requesting a copy. The
Page No.7agency may charge persons who are not members ofthe legislative assembly fees for copies ofthe proposed rule as allowed undersection 44-04-18. 3. In addition to the other notice requirements ofthis subsection, the superintendent of public instruction shall provide notice of any proposed rulemaking by the superintendent of public instruction to each association with statewide membership whose primary focus is elementary and secondary education issues which has requested to receive notice from the superintendent under this subsection and to the superintendent ofeach public school district in this state, orthe president ofthe school board for school districts that have no superintendent, at leasttwenty days before the date ofthe hearing described in the notice. Notice provided by the superintendent of public instruction underthis section must be byfirst-class mail. However, upon request of a group or person entitled to notice underthis section, the superintendent of public instruction shall provide the group or person notice by electronic mail. 4. The legislative council shall establish standard procedures for all agencies to follow in complying with the provisions ofthis section and a procedure to allow any person to request and receive mailed copies of all filings made by agencies pursuant to this section. The legislative council may charge an annual fee as established by the administrative rules committeefor providing copies ofthe filings. 5. At leasttwenty days must elapse between the date ofthe publication ofthe notice and the date ofthe hearing. Within fifteen business days after receipt ofa notice underthis section, a copy of the notice must be mailed by the legislative council to any person who has paid the annual fee established under subsection 4.
28-32-11. Conduct of hearings

- Notice of administrative rules committee consideration

- Consideration andwritten record ofcomments. The agency shall adopta procedurewhereby all interested persons are afforded reasonable opportunity to submit data, views, or arguments, orally or in writing, concerning the proposed rule, including data respecting the impact of the proposed rule. The agency shall adopt a procedure to allow interested parties to request and receive notice from the agency ofthe date and placethe rule will be reviewed by the administrative rules committee. In case ofsubstantive rules, the agency shall conduct an oral hearing. The agency shall consider fully all written and oral submissions respecting a proposed rule priorto the adoption, amendment, or repeal ofany rule not ofan emergency nature. The agency shall make awritten record of its consideration of all written and oral submissions contained in the rulemaking record respecting a proposed rule.
28-32-12. Comment period. The agency shall allow, after the conclusion of any rulemaking hearing, a comment period ofat leastten days during which data, views, or arguments concerning the proposed rulemaking will be received by the agency and made a part of the rulemaking record to be considered by the agency.
28-32-13. Substantial compliancewith rulemaking procedure. A rule is invalid unless adopted in substantial compliance with this chapter. However, inadvertent failure to supply any person with a notice required by section 28-32-10 does not invalidate a rule. Notwithstanding subsection 2 of section 28-32-42, an action to contest the validity of a rule on the grounds of noncompliance with this chapter may not be commenced morethantwoyears afterthe effectivedate ofthe rule.
28-32-14.Attorney general reviewofrules. Every rule proposed by any administrative agency must be submitted to the attorney general for an opinion as to its legality before final adoption, and the attorney general promptly shall furnish each such opinion. The attorney general may not approve any rule as to legality when the rule exceeds the statutory authority ofthe agency or is written in a mannerthat is not concise or easily understandable orwhen the procedural requirements for adoption ofthe rule in

Page No.8this chapter are not substantially met. The attorney general shall advise an agency of any revision or rewording ofa rule necessaryto correct objections as to legality.
28-32-15. Filing of rules for publication - Effective date of rules. 1. A copy of each rule adopted by an administrative agency, a copy of each written comment and a written summary of each oral comment on the rule, and the attorney general's opinion on the rule must be filed by the adopting agency with the legislative council for publication ofthe rule in the North DakotaAdministrative Code. 2. a. Nonemergency rules approved by the attorney general as to legality, adopted by an administrative agency, and filed with the legislative council and not voided or held for consideration by the administrative rules committee become effective according to the following schedule: (1) Rules filed with the legislative council from August second through November first become effective on the immediately succeeding January first. (2) Rules filed with the legislative council from November second through Februaryfirst become effective on the immediately succeedingApril first. (3) Rules filed with the legislative council from February second through May first become effective on the immediately succeeding Julyfirst. (4) Rules filed with the legislative council from May second through August first become effective on the immediately succeeding Octoberfirst. b. If publication is delayed for any reason other than action of the administrative rules committee, nonemergency rules, unless otherwise provided, become effective when publication would have occurred butforthe delay. c. A rule held for consideration by the administrative rules committee becomes effective on the first effective date of rules under the schedule in subdivision a following the meeting atwhich that rule is reconsidered bythe committee.
28-32-16. Petitionfor reconsideration of rule - Hearing by agency. Any person substantially interested in the effect of a rule adopted by an administrative agency may petition such agency for a reconsideration ofany such rule orfor an amendment or repeal thereof. Such petition muststate clearly and conciselythe petitioners' alleged groundsfor such reconsideration or for the proposed repeal or amendment of such rule. The agency may grant the petitioner a public hearing upon such terms and conditions as the agency may prescribe.
28-32-17. Administrative rules committee objection. Ifthe legislative management's administrative rules committee objects to all or any portion of a rule because the committee deems it to be unreasonable, arbitrary, capricious, or beyond the authority delegated to the adopting agency, the committee may file that objection in certified form with the legislative council. The filed objection must contain a concise statement of the committee's reasons for its action. 1. The legislative council shall attach to each objection a certification ofthetime and date of its filing and, as soon as possible, shall transmit a copy of the objection and the certification to the agency adopting the rule in question. The legislative council also shall maintain a permanent register ofall committee objections. 2. The legislative council shall publish an objection filed pursuant to this section in the next issue of the code supplement. In case of a filed committee objection to a rule subject to the exceptions ofthe definition of rule in section 28-32-01, the agency shall indicate the existence of that objection adjacent to the rule in any compilation containing that rule. 3. Within fourteen days after the filing of a committee objection to a rule, the adopting agency shall respond in writing to the committee. After receipt of the response, the committee maywithdraw or modify its objection.

Page No.94. After the filing of a committee objection, the burden of persuasion is upon the agency in any action for judicial review or for enforcement of the rule to establish that the whole or portion thereof objected to is within the procedural and substantive authority delegated to the agency. Ifthe agencyfails to meet its burden of persuasion, the court shall declare thewhole or portion ofthe rule objected to invalid andjudgment must be rendered against the agency for court costs. These court costs must include a reasonable attorney's fee and must be payable from the appropriation ofthe agency which adopted the rule in question.
28-32-18. Administrative rules committee may void rule

- Grounds

- Amendment by agreementofagencyand committee. 1. The legislative management's administrative rules committee may find that all or any portion ofa rule is void ifthat rule is initially considered bythe committee not laterthan the fifteenth day ofthe month before the date ofthe administrative code supplement in which the rule change is scheduled to appear. The administrative rules committee may find a rule or portion ofa rule void ifthe committee makesthe specificfinding that, with regard to that rule or portion ofa rule, there is: a. An absence ofstatutory authority. b. An emergency relating to public health, safety, orwelfare. c. A failure to comply with express legislative intent or to substantially meet the procedural requirements ofthis chapterfor adoption ofthe rule. d. Aconflictwith state law. e. Arbitrariness and capriciousness. f. A failure to make a written record of its consideration of written and oral submissions respecting the rule undersection 28-32-11. 2. The administrative rules committee may find a rule void at the meeting at which the rule is initially considered by the committee or may hold consideration ofthat rule for one subsequent meeting. If no representative of the agency appears before the administrative rules committee when rules are scheduled for committee consideration, those rules are held overfor consideration at the next subsequent committee meeting. Rules are not considered initially considered by the committee under this subsection until a representative ofthe agency appears before the administrative rules committee when the rules are scheduled for committee consideration. If no representative ofthe agency appears before the administrative rules committee meeting to which rules are held over for consideration, the rules are void ifthe rules were adopted as emergency rules and for rules not adopted as emergency rules the administrative rules committee may void the rules, allow the rules to become effective, or hold over consideration of the rules to the next subsequent committee meeting. Within three business days after the administrative rules committee finds that a rule is void, the legislative council shall provide written notice of that finding and the committee's specific finding under subdivisions athrough f ofsubsection 1to the adopting agency and to the chairman of the legislative management. Within fourteen days after receipt of the notice, the adopting agency may file a petition with the chairman ofthe legislative management for review by the legislative management of the decision of the administrative rules committee. Ifthe adopting agency does notfile a petition for review, the rule becomes void on the fifteenth day after the notice from the legislative council to the adopting agency. Ifwithin sixty days after receipt ofthe petition from the adopting agency the legislative management has not disapproved by motion the finding of the administrative rules committee, the rule is void. 3. An agency may amend or repeal a rule orcreate a related rule if, afterconsideration of rules by the administrative rules committee, the agency and committee agree that the rule amendment, repeal, or creation is necessaryto address any ofthe considerations under subsection 1. A rule amended, repealed, or created underthis subsection is not subject to the other requirements ofthis chapter relating to adoption of administrative rules and may be published by the legislative council as amended, repealed, or created. Ifrequested by the agency or any interested party, a rule amended, repealed,
Page No. 10or created under this subsection must be reconsidered by the administrative rules committee at a subsequent meeting at which public comment on the agreed rule change must be allowed.
28-32-18.1.Administrative rules committee reviewofexisting administrative rules. 1. Upon request by the administrative rules committee, an administrative agency shall brief the committee on its existing administrative rules and point out any provisions that appear to be obsolete and any areas in which statutory authority has changed or been repealed sincethe rules were adopted oramended. 2. An agency may amend or repeal a rule without complying with the other requirements of this chapter relating to adoption of administrative rules and may resubmit the change to the legislative council for publication provided: a. The agency initiates the request to the administrative rules committee for consideration ofthe amendment or repeal; b. The agency provides notice to the regulated community, in a manner reasonably calculated to provide notice to those persons interested in the rule, of the time and place the administrative rules committee will consider the request for amendment or repeal ofthe rule; and c. The agency and the administrative rules committee agree the rule amendment or repeal eliminates a provision that is obsolete or no longer in compliance with law and that no detriment would result to the substantive rights of the regulated communityfrom the amendment or repeal.
28-32-19. Publication ofadministrativecode and codesupplement. 1. The legislative council shall compile, index, and publish all rules filed pursuant to this chapter in a publication which must be known as the North Dakota Administrative Code, in this chapter referred to as the code. The code also must contain all objections filed with the legislative council by the administrative rules committee pursuant to section 28-32-17. The legislative council shall revise all or part ofthe code as often as the legislative council determines necessary. 2. The legislative council may prescribe a format, style, and arrangement for rules which are to be published in the code and may refuse to accept the filing of any rule that is not in substantial compliance therewith. In arranging rules for publication, the legislative council may make such corrections in spelling, grammatical construction, format, and punctuation ofthe rules as determined proper. The legislative council shall keep and maintain a permanent code of all rules filed, including superseded and repealed rules, which must be open to public inspection during office hours. 3. The legislative council shall compile and publish the North DakotaAdministrative Code supplement according to the schedule ofeffective dates ofrules in section 28-32-15. a. The code supplement must contain all rules that have been filed with the legislative council or which have become effective since the compilation and publication ofthe preceding issue ofthe code supplement. b. The code supplement must contain all objections filed with the legislative council bythe administrative rules committee pursuantto section 28-32-17. 4. The legislative council, with the consent of the adopting agency, may omit from the code or code supplement any rule the publication of which would be unduly cumbersome, expensive, or otherwise inexpedient, ifthe rule in printed or duplicated form is made available on application to the agency, and if the code or code supplement contains a notice stating the general subject matter ofthe omitted rule and stating howa copy may be obtained. 5. The code must be arranged, indexed, and printed or duplicated in a manner to permit separate publication of portions thereof relating to individual agencies.An agency may print as many copies of such separate portions of the code as it may require. If the legislative council does not publish the code supplement due to technological problems or lack offunds, the agency whose rules would have been published in the

Page No. 11code supplement shall provide a copy ofthe rules to any person upon request. The agency may charge afee for a copy ofthe rules as allowed under section 44-04-18.
28-32-20. Printing, sales, and distribution ofcode and codesupplement. 1. The secretary of state shall distribute the code and code supplement and shall distribute copies ofthe code, revisions, and the code supplementwithout chargeto the following: a. Governor, one copy. b. Attorney general, one copy. c. Each supreme courtjudge, one copy. d. Each district courtjudge, one copy. e. Each county auditor of this state, for the use of county officials and the public, one copy. f. Supreme court library, one copy. g. State library, one copy. h. Law library ofthe university ofNorth Dakota, one copy. i. Each ofthe five depository libraries in this state, one copy, upon request. j. Secretary ofstate, one copy. k. Legislative council, four copies. 

### I. Each memberofthe legislative assembly, one copy, upon request. 2. The legislative council, each county auditor in the state, and the librarians for the supreme court library, the state library, the university of North Dakota law library, and the five depository libraries as designated according to subsection 1 and section 54-24-09 shall maintain a complete, current set of the code, including revisions and the code supplement. 3. The secretary of state shall make copies of and subscriptions to the code and code supplement availableto any person upon payment ofthe appropriate subscription fee. 4. The legislative council shall determine the appropriate fee for subscribing to the code and code supplement. 5. All fees collected by the secretary ofstate must be deposited in the general fund ofthe statetreasury. 6. If applicable, the administrative code, revisions to the administrative code, and the code supplement must be considered sixth-class printing under sections 46-02-04 and 46-02-09.
28-32-21.Adjudicative proceedings- Procedures. Administrative agencies shall comply with the following procedures in all adjudicative proceedings: 1. 

### a.

b.

c. For adjudicative proceedings involving a hearing on a complaint against a specific-named respondent, a complainant shall prepare and file a clear and concise complaint with the agency having subject matter jurisdiction of the proceeding. The complaint shall contain a concise statement of the claims or charges upon which the complainant relies, including reference to the statute or rule alleged to be violated, and the reliefsought. Afteracomplaint is filed, the appropriate administrative agency shall serve a copy of the complaint upon the respondent in the manner allowed for the service of process underthe North Dakota Rules of Civil Procedure at least forty-five days beforethe hearing on the complaint. The administrative agency shall designatethe time and place forthe hearing and shall serve a copy of the notice of hearing upon the respondent in the manner allowed for service under the North Dakota Rules of Civil Procedure, at least twenty days before the hearing on the complaint. Service ofthe notice of hearing may be waived in writing by the respondent, or the parties may agree on a definite time and place for hearing with the consent of the agency having jurisdiction.

Page No. 12d. A complaint may be served less than forty-five days before the time specified for a hearing on the complaint and a notice of hearing on a complaint may be served lessthan twenty days beforethe time specified for hearing ifotherwise authorized by statute. However, an administrative hearing regarding the renewal, suspension, or revocation of a license may not be held fewer than ten days after the licensee has been served, personally or by certified mail, with a copy of a notice for hearing with an affidavit, complaint, specification of issues, or other document alleging violations upon which the license hearing is based. e. A complaint may inform the respondent that an answer to the complaint must be served upon the complainant and the agency with which the complaint is filed within twenty days after service of the complaint, or the agency may deem the complaint to be admitted. If the respondent fails to answer as required within twenty days after service of the complaint, the agency may enter an order in default as the facts and law may warrant. Answers must be served in the manner allowed for service underthe North Dakota Rules ofCivil Procedure. f. Service is complete upon compliance with the provisions of the North Dakota Rules of Civil Procedure. Proof ofservice may be made as provided in the North Dakota Rules ofCivil Procedure. g. A respondent may be given less than twenty days to answer the complaint, pursuant to another statute, but no respondent may be required to answer a complaint in less than five days and an answer must be served on the complainant and the agency with which the complaint is filed at least two days beforethe hearing on the complaint. h. Amended and supplemental pleadings may be served and filed with the agency in the manner allowed for amended and supplemental pleadings underthe North Dakota Rules ofCivil Procedure. 2. At any hearing in an adjudicative proceeding, the parties shall be afforded opportunity to present evidence and to examine and cross-examine witnesses as is permitted undersections 28-32-24 and 28-32-35. 3. a. Ifthe adjudicative proceeding does not involve a hearing on acomplaint againsta specific-named respondent, the provisions of subsection 1 do not apply. Unless otherwise provided by law, the provisions ofsubdivisions bthrough d apply. b. The administrative agency shall designate the time and place forthe hearing and shall serve a copy of the notice of hearing upon all the parties in the manner allowed for service under the North Dakota Rules of Civil Procedure at least twenty days before the hearing. Service ofthe notice of hearing may bewaived in writing by the parties, or the parties may agree on a definite time and place for the hearing with the consent ofthe agency havingjurisdiction. c. A hearing under this subsection may not be held unless the parties have been properly served with a copy of the notice of hearing as well as a written specification of issues for hearing or other document indicating the issues to be considered and determined at the hearing. In lieu of, or in addition to, a specification of issues or other document, an explanation about the nature ofthe hearing and the issues to be considered and determined at the hearing may be contained in the notice. d. Service is complete upon compliance with the provisions of the North Dakota Rules of Civil Procedure. Proofofservice may be made as provided in the North Dakota Rules ofCivil Procedure.
28-32-22. Informal disposition. Unless otherwise prohibited by specific statute or rule, informal disposition may be made of any adjudicative proceeding, or any part or issue thereof, by stipulation, settlement, waiver of hearing, consent order, default, alternative dispute resolution, or other informal disposition, subject to agency approval.Any administrative agency may adopt rules ofpractice or procedure for informal disposition if such rules do not substantially prejudice the rights of any party. Such

Page No. 13rules may establish procedures for converting an administrative matter from one type of proceeding to anothertype ofproceeding.
28-32-23. Adjudicative proceedings- Exceptions- Rules ofprocedure. Notwithstanding the requirements for standardization of procedures in adjudicative proceedings under this chapter, an administrative agency may adopt specific agency rules of procedure not inconsistent with this chapter. An administrative agency may also adopt specific agency rules ofprocedure when necessaryto complywith requirements found elsewhere in this code or when necessary to comply with the requirements of federal statutes, rules, or standards.
28-32-24. Evidenceto be considered by agency - Official notice. 1. The admissibility of evidence in any adjudicative proceeding before an administrative agency shall be determined in accordance with the North Dakota Rules of Evidence. An administrative agency, or any person conducting proceedings for it, may waive application ofthe North Dakota Rules ofEvidence ifawaiver is necessaryto ascertain the substantial rights of a party to the proceeding, but only relevant evidence shall be admitted. Thewaiver must be specifically stated, orally or in writing, either priorto orat a hearing or other proceeding. 2. All objections offered to evidence shall be noted in the record of the proceeding. No information or evidence except that which has been offered, admitted, and made a part ofthe official record ofthe proceeding shall be considered by the administrative agency, except as otherwise provided in this chapter. 3. Upon proper objection, evidence that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds, or on the basis of evidentiary privilege recognized in the courts of this state, may be excluded. In the absence of proper objection, the agency, or any person conducting a proceeding for it, may exclude objectionable evidence. 4. The North Dakota Rules of Evidence in regard to privileges apply at all stages of an administrative proceeding underthis chapter. 5. All testimony must be made under oath or affirmation. Relevant statements presented by nonparties may be received as evidence if all parties are given an opportunity to cross-examine the nonpartywitness orto otherwise challenge or rebut the statements. Nonparties may not examine orcross-examinewitnesses except pursuantto agrantof intervention. 6. Evidence may be received in written form if doing so will expedite the proceeding without substantial prejudiceto the interests ofany party. 7. Official notice may be taken ofanyfacts that could bejudicially noticed in the courts of this state. Additionally, official notice may be taken ofanyfacts as authorized in agency rules.
28-32-25. Adjudicative proceedings - Consideration of information not presented at a hearing. In any adjudicative proceeding, an administrative agency may·avail itself of competent and relevant information or evidence in its possession or furnished by members of its staff, or secured from any person in the course of an independent investigation conducted by the agency, in addition to the evidence presented at the hearing. It may do so afterfirst transmitting a copy of the information or evidence or an abstract thereof to each party of record in the proceeding. The agency must afford each party, upon written request, an opportunityto examine the information or evidence and to present its own information or evidence and to cross-examine the person furnishing the information or evidence. Any further testimony that is necessary shall be taken at a hearing to be called and held, giving at least ten days' notice. Notice must be served upon the parties in the manner allowed for service under the North Dakota Rules of Civil Procedure. This section also applies to information officially noticed after

Page No. 14the hearing when the issuance of any initial or final order is based in whole or in part on the facts or material noticed.
28-32-26. Costs of investigation. An agency may assess the costs ofan investigation to a person found to be in violation ofa statute or rule as a result of an adjudicative proceeding or informal disposition. The total costs assessed and any civil penalty that may be imposed as a result ofviolation may not exceed the statutorily authorized civil penalty for the violation. For the purposes ofthis section, costs mean reasonable out-of-pocket agency costs, not including any attorney's fees, actually incurred in conducting the investigation forwhich they may be assessed. Any such costs paid must be paid into the general fund and are appropriated as a refund to the agency for the purposes of defraying the costs ofundertaking the investigation.
28-32-27. Hearing officer- Disqualification- Substitution. 1. Any person or persons presiding for the agency in an administrative proceeding must be referred to individually or collectively as hearing officer. Any person from the office of administrative hearings presiding for the agency as a hearing officer in an administrative proceeding must be referred to as an administrative lawjudge. 2. Any hearing officer is subjectto disqualification for good cause shown. 3. Any party may petition for the disqualification of any person presiding as a hearing officer upon discovering facts establishing groundsfor disqualification. 4. A person whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons forthe determination. 5. If a substitute is required for a person who is disqualified or becomes unavailable for any other reason, the substitute may be appointed by: a. The attorney general, if the disqualified or unavailable person is an assistant attorney general; b. The agency head, if the disqualified or unavailable person is one or more members of the agency head or one or more other persons designated by the agency head; c. Asupervising hearing officer, ifthe disqualified or unavailable person is a hearing officerdesignated from an office, pool, panel, ordivision of hearing officers; or d. The governor, in all othercases. 6. Any action taken by aduly appointed substitutefor adisqualified or unavailable person is as effective as iftaken bythe disqualified or unavailable person. 7. Any hearing officer in an administrative proceeding, from the time of appointment or designation, may exercise any authority granted by law or rule. A hearing officer may be designated to preside over the entire administrative proceeding and may issue orders accordingly. A procedural hearing officer may only issue orders in regard to the course and conduct of the hearing under statute or rule and to otherwise effect an orderly hearing. Ifa procedural hearing officer is designated, the agency head must be present at the hearing and the agency head shall issue findings of fact and conclusions of law, aswell as any order resulting from the hearing.
28-32-28. Intervention. An administrative agency may grant intervention in an adjudicative proceeding to promote the interests of justice if intervention will not impair the orderly and prompt conduct of the proceeding and if the petitioning intervenor demonstrates that the petitioner's legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding orthatthe petitionerqualifies as an intervenor under any provision ofstatute or rule. The agency may impose conditions and limitations upon intervention. The agency shall give reasonable notice of the intervention to all parties. An administrative agency may adopt rules relating to intervention in an adjudicative proceeding.

Page No. 1528-32-29. Prehearing conference. Before a hearing, an administrative agency may conduct a prehearing conference after giving reasonable notice to all parties and other interested persons. A prehearing conference may be conducted in total or in part by making use oftelephone, facsimile services, television, or other electronic means, as long as such use does not substantially prejudice or infringe on the rights and interests of any party. An administrative agency may adopt rules regarding the availability of, notice of, and proceduresfor prehearing conferences.
28-32-30. Default. 1. If a party fails to attend or participate in a prehearing conference, hearing, or other stage ofan adjudicative proceeding, the agency may enter and serve upon all parties written notice of default and a default order, including a statement ofthe grounds for default. 2. Within seven days after service of the default notice, order, and grounds, the party againstwhom defaultwas ordered mayfile awritten motion requesting thatthe default order be vacated and stating the grounds relied upon. During the time within which a party may file a written motion under this section, or at the time of issuing notice and the default order, the agency may adjourn the proceedings or conduct them without the participation of the party against whom a default order was issued, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings. If an agency conducts further proceedings necessary to complete the administrative action without the participation ofa party in default, it shall determine all the issues involved, including those affecting the defaulting party.
28-32-31. Duties ofhearing officers. All hearing officers shall: 1. Assurethat proper notice has been given as required by law. 2. Conduct only hearings and related proceedings for which proper notice has been given. 3. Assure that all hearings and related proceedings are conducted in afair and impartial manner. 4. Make recommended findings offact and conclusions oflaw and issue a recommended order, when appropriate. 5. Conduct the hearing only and perform such other functions of the proceeding as requested, when an agency requests a hearing officer to preside only as a procedural hearing officer. Ifthe hearing officer is presiding only as a procedural hearing officer, the agency head must be present at the hearing and the agency head shall make findings offact and conclusions of law and issue a final order. The agency shall give proper notice as required by law. The procedural hearing officer may issue orders in regard to the conduct ofthe hearing pursuantto statute or rule and to otherwise effect an orderly and promptdisposition ofthe proceedings. 6. Make findings of fact and conclusions of law and issue a final order, if required by statute or requested by an agency. 7. Function only as a procedural hearing officer, when an agency requests a hearing officerto preside for a rulemaking hearing. The agency head need not be present. The agency shall give proper notice as required by law. 8. Perform any and all other functions required by law, assigned by the director of administrative hearings, ordelegated to the hearing officer bythe agency.
28-32-32. Emergency adjudicative proceedings. An administrative agency may use an emergency adjudicative proceeding, in its discretion, in an emergency situation involving imminent peril to the public health, safety, orwelfare. 1. In an emergency, the administrative agency may take action pursuant to a specific statute as is necessary to prevent or avoid imminent peril to the public health, safety, orwelfare.

Page No. 162. In an emergency, in the absence of a specific statute, an administrative agency may serve a complaint fewer than forty-five days before the hearing and give notice of a hearing on the complaint by giving less than twenty days' notice as is necessary to prevent or avoid imminent peril to the public health, safety, orwelfare. But, every party to the emergency adjudicative proceeding must be given a reasonable time within which to serve an answer and to prepare for the hearing, which may be extended by the agency upon good cause being shown. 3. In an emergency, in the absence of a specific statute, in an adjudicative proceeding that does not involve a complaint against a specific-named respondent, an administrative agency may give notice of a hearing by giving less than twenty days' notice as is necessaryto prevent or avoid imminent peril tothe public health, safety, or welfare. But, every party to the emergency adjudicative proceeding shall be given a reasonable time to prepare for the hearing, which may be extended by the agency upon good cause being shown. 4. As a result of the emergency adjudicative proceeding, in the absence of a specific statute requiring other administrative action, the administrative agency shall issue an order. The order must include a brief statement of the reasons justifying the determination of imminent peril to the public health, safety, orwelfare and requiring an emergency adjudicative proceeding to prevent oravoid the imminent peril. 5. After issuing an order pursuant to this section, the administrative agency shall proceed as soon as possible to complete any other proceedings related to the emergency adjudicative proceeding that do not involve imminent peril to the public health, safety, orwelfare.
28-32-33. Adjudicative proceedings- Subpoenas- Discovery- Protective orders. 1. In an adjudicative proceeding, discovery may be obtained in accordance with the North Dakota Rules ofCivil Procedure. 2. In any adjudicative proceeding, upon the request or motion of any party to the proceeding or upon the hearing officer's own motion on behalfofthe agency, a hearing officer may issue subpoenas, discovery orders, and protective orders in accordance with the North Dakota Rules of Civil Procedure. A motion to quash or modify, or any other motion relating to subpoenas, discovery, or protective orders must be made to the hearing officer. The hearing officer's rulings on these motions may be appealed under section 28-32-42 after issuance of the final order by the agency. The cost of issuing and serving a subpoena in any adjudicative proceeding must be paid by the person or agency requesting it. 3. Any witness who is subpoenaed underthe provisions ofthis section and who appears at a hearing or other part of an adjudicative proceeding, orwhose deposition is taken, shall receive the same fees and mileage as a witness in a civil case in the district court. Witness fees and mileage shall be paid by the party or agency at whose instance the witness appears. Any hearing officer may order the payment of witness fees or mileage by the appropriate party or agency. 4. Subpoenas, discovery orders, protective,orders, and other orders issued under this section may be enforced by applying to any judge of the district court for an order requiring the attendance of a witness, the production of all documents and objects described in the subpoena, or otherwise enforcing an order. Failure of a witness or other person to comply with the order ofthe district court is contempt of court which is punishable bythe district court, upon application. Thejudge may award attorney'sfees to the prevailing party in an application underthis subsection.
28-32-34. Administration ofoaths - Partiesto be advised ofperjury provisions. Any hearing officer in an administrative proceeding has the power to examine witnesses and records and to administer oaths to witnesses. At the time the person presiding administers the oath to a witness, the person shall advise the witness of the provisions of subsection 1 of section 12.1-11-01 and ofthe maximum penaltyfor perjury.

Page No. 1728-32-35. Procedureat hearing. The person presiding at a hearing shall regulate the course ofthe hearing in conformitywith this chapter and any rules adopted under this chapter by an administrative agency, any other applicable laws, and any prehearing order. To the extent necessary for full disclosure of all relevant facts and issues, the person presiding atthe hearing shall afford to all parties and other persons allowed to participate the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence, except as restricted orconditioned by a grant of intervention or by a prehearing order. A hearing may be conducted in total"or in part by making use of telephone, television, facsimile services, or other electronic means if each participant in the hearing has an opportunityto participate in, to hear, and, ifpracticable, to see the entire proceeding while it is taking place, and ifsuch use does not substantially prejudice or infringe on the rights and interests ofany party.
28-32-36. Agencyto make record. An administrative agency shall make a record of all testimony, written statements, documents, exhibits, and other evidence presented at any adjudicative proceeding or other administrative proceeding heard by it. Oral testimony may be taken by a court reporter, by a stenographer, or by use of an electronic recording device. All evidence presented at any proceeding before the administrative agency shall be filed with the agency. A copy ofthe record of any proceeding before an administrative agency, or a part thereof, must be furnished to any party to the proceeding and to any other person allowed to participate in the proceeding, upon written request submitted to the agency and upon payment ofa uniform charge to be set by the agency. Any fee paid to an administrative agency for the record, or a part thereof, shall be paid intothe generalfund and is appropriated as a refund to the agencyforthe purposes ofdefraying the costs ofpreparing the record. An agency may contractwith any person oranotheragencyto prepare a record, ora partthereof, ofany proceeding beforethe agency.
28-32-37. Ex parte communications. 1. Except as provided in subsections 2 and 4 or unless required for the disposition of ex parte matters specifically authorized by another statute, an agency head or hearing officer in an adjudicative proceeding may not communicate, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending, with any party, with any person who has a direct or indirect interest in the outcome ofthe proceeding, with any other person allowed to participate in the proceeding, or with any person who presided at a previous stage ofthe proceeding, without notice and opportunity for all partiesto participate in the communication. 2. When more than one person is the hearing officer in an adjudicative proceeding, those persons may communicate with each other regarding a matter pending before the panel. An agency head or hearing officer may communicate with or receive aid from staff assistants if the assistants do not furnish, augment, diminish, or modify the evidence in the record. 3. Except as provided in subsection 4 or unless required for the disposition of ex parte matters specifically authorized by statute, no party to an adjudicative proceeding, no person who has a direct or indirect interest in the outcome of the proceeding, no person allowed to participate in the proceeding, and no person who presided at a previous stage in the proceeding may communicate directly or indirectly in connection with any issue in that proceeding, while the proceeding is pending, with any agency head or hearing officer in the proceeding without notice and opportunity for all parties to participate in the communication. 4. In an adjudicative proceeding conducted by a hearing officer other than the agency head, counsel for the administrative agency and the agency head, without notice and opportunity for all parties to participate, may communicate and consult regarding the status of the adjudicative proceeding, discovery, settlement, litigation decisions, and other matters commonly communicated between attorney and client, to permit the agency head to make informed decisions. This subsection does not apply after recommended findings of fact, conclusions of law, and orders have been issued,
Page No. 18except counsel for the administrative agency and the agency head may communicate regarding settlement and negotiation after recommended findings offact, conclusions oflaw, and orders have been issued. 5. If, before being assigned, designated, or appointed to preside in an adjudicative proceeding, a person receives an ex parte communication of a type that could not properly be received while presiding, the person, promptly after being assigned, designated, or appointed, shall disclose the communication in the manner prescribed in subsection 6. 6. An agency head or hearing officer in an adjudicative proceeding who receives an ex parte communication in violation of this section shall place on the record of the pending matter all written communications received, all written responses to the communications, or a memorandum stating the substance of all oral communications received, all responses made, and the identity ofeach person from whom the person received an ex parte oral communication, and shall advise all parties, interested persons, and other persons allowed to participate thatthese matters have been placed on the record. Any person desiring to rebut the ex parte communication must be allowed to do so, upon requesting the opportunity for rebuttal. A request for rebuttal must be madewithin ten days after notice ofthe communication. 7. If necessary to eliminate the effect of an ex parte communication received in violation ofthis section, an agency head or hearing officer in an adjudicative proceeding who receives the communication may be disqualified, upon good cause being shown in writing to the hearing officer or to the agency. The portions ofthe record pertaining to the communication may be sealed by protective order issued bythe agency. 8. The agency shall, and any party may, report any willful violation ofthis section to the appropriate authorities for any disciplinary proceedings provided by law. In addition, an administrative agency may, by rule, provide for appropriate sanctions, including default, for any violations ofthis section. 9. Nothing in this section prohibits a memberofthe general public, notacting on behalfor at the request of any party, from communicating with an agency in cases of general interest. The agency shall disclose such written communications in adjudicative proceedings.
28-32-38. Separation offunctions. 1. No person who has served as investigator, prosecutor, or advocate in the investigatory or prehearing stage ofan adjudicative proceeding may serve as hearing officer. 2. No person who is subject to the direct authority of one who has served as an investigator, prosecutor, or advocate in the investigatory or prehearing stage of an adjudicative proceeding may serve as hearing officer. 3. Any other person may serve as hearing officer in an adjudicative proceeding, unless a party demonstrates groundsfordisqualification. 4. Any person may serve as hearing officer at successive stages of the same adjudicative proceeding, unless a party demonstrates groundsfor disqualification.
28-32-39. Adjudicative proceedings

- Findings offact, conclusions of law, and order ofagency - Notice. 1. In an adjudicative proceeding an administrative agency shall make and state concisely and explicitly its findings offact and its separate conclusions of law and the order of the agency based upon itsfindings and conclusions. 2. Ifthe agency head, or another person authorized by the agency head or by law to issue a final order, is presiding, the order issued is the final order. The agency shall serve a copy ofthe final order and the findings offact and conclusions of law on which it is based upon all the parties to the proceeding within thirty days after the evidence has been received, briefs filed, and arguments closed, or as soon thereafter as possible, in the manner allowed for service under the North Dakota Rules of Civil Procedure.

Page No. 193. If the agency head, or another person authorized by the agency head or by law to issue a final order, is not presiding, then the person presiding shall issue recommended findings offact and conclusions of lawand a recommended orderwithin thirty days afterthe evidence has been received, briefs filed, and arguments closed, or as soon thereafter as possible. The recommended findings offact and conclusions of law and the recommended order become final unless specifically amended or rejected by the agency head. The agency head may adopt the recommended findings of fact and conclusions of law and the recommended order as final. The agency may allow petitions for review of a recommended order and may allow oral argument pending issuance of a final order. An administrative agency may adopt rules regarding the review of recommended orders and other procedures for issuance of a final order by the agency. Ifa recommended order is issued, the agency must serve a copy ofany final order issued and the findings offact and conclusions of law on which it is based upon all the parties to the proceeding within sixty days after the evidence has been received, briefs filed, and arguments closed, or as soon thereafter as possible, in the mannerallowed for service underthe North Dakota Rules ofCivil Procedure.
28-32-40. Petitionfor reconsideration. 1. Any party before an administrative agency who is aggrieved by the final order of the agency, including the administrative agencywhen the hearing officer is not the agency head or one or more members ofthe agency head, within fifteen days after notice has been given as required by section 28-32-39, mayfile a petition for reconsideration with the agency. Filing ofthe petition is not a prerequisite for seekingjudicial review. Ifthe agency's hearing officer issues the agency's final order, the petition for reconsideration must be addressed to the hearing officer, who may grant or deny the petition under subsection 4. 2. Any party, including workforce safety and insurance, that appears before workforce safety and insurance may file a petition for reconsideration within thirty days after notice has been given as required by section 28-32-39. 3. The party must submit with the petition for reconsideration a statement ofthe specific grounds upon which relief is requested or a statement of any further showing to be made in the proceeding. The petition mustalso statewhethera rehearing is requested. The petition and any statement shall be considered a part of the record in the proceeding. 4. The administrative agency may deny the petition for reconsideration or may grant the petition on such terms as it may prescribe. If a rehearing is granted, the agency may allow a new hearing or limit the hearing as appropriate. The agency may dissolve or amend the final order and setthe matterfor further hearing. The petition is deemed to have been denied ifthe agency does not dispose of it within thirty days afterthe filing of the petition. Any rehearing must be presided over by the same person or persons presiding previously at the hearing, if available. Any amended findings, conclusions, and orders must be issued by the same person or persons who issued the previous recommended or final orders, if available. Within thirty days after the close of proceedings upon reconsideration, or as soon thereafter as possible, the agency shall issue and give notice of its order upon reconsideration as required in subsection 3 of section 28-32-39. 5. This section does not limitthe right ofany agency to reopen any proceeding or rehear any matter underany continuingjurisdictionwhich is granted to the agency by statute.
28-32-41. Effectiveness oforders. Unless a later date is stated in the order, a final order of an administrative agency is effective immediately, but a party may not be required to comply with afinal order unless it has been served upon the party and notice is deemed given pursuant to section 28-32-39 or the party has actual knowledge ofthe final order. A nonparty may not be required to comply with a final order unless the agency has made the final order available for public inspection and copying or the nonparty has actual knowledge ofthe final order. This section does not preclude
Page No. 20an agency from taking emergency action to protect the public health, safety, or welfare as authorized by statute.
28-32-42. Appeal from determination ofagency -Timeto appeal - Howappeal taken. 1. Any partyto any proceeding heard by an administrative agency, exceptwhen the order of the administrative agency is declared final by any other statute, may appeal from the order within thirty days after notice of the order has been given as required by section 28-32-39. If a reconsideration has been requested as provided in section 28-32-40, the party may appeal within thirty days after notice ofthe final determination upon reconsideration has been given as required by sections 28-32-39 and 28-32-40. Ifan agency does not dispose of a petition for reconsideration within thirty days after the filing of the petition, the agency is deemed to have made a final determination upon which an appeal may be taken. 2. Any interested person who has participated in the rulemaking process of an administrative agency may appeal the agency's rulemaking action if the appeal is taken within ninety days afterthe date ofpublication in the North DakotaAdministrative Code ofthe rule resulting from the agency rulemaking action. 3. a. The appeal of an order may be taken to the district court designated by law, and if none is designated, then to the district court ofthe county in which the hearing or a part thereof was held. If the administrative proceeding was disposed of informally, or for some other reason no hearing was held, an appeal may be taken to the district court of Burleigh County. Only final orders are appealable. A procedural order made by an administrative agency while a proceeding is pending before it is not afinal order. b. The appeal of an agency's rulemaking action may be taken to the district court of Burleigh County. 4. An appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken, upon the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency, and by filing the notice of appeal and specifications of error together with proof of service of the notice of appeal, and the undertaking required by this section, with the clerk ofthe district court to which the appeal is taken. In an appeal of an agency's rulemaking action, only the administrative agency concerned, the attorney general, or an assistant attorney general, aswell as the legislative council, needto be notified. 5. The notice of appeal must specify the parties taking the appeal as appellants. The agency and all other parties of record who are not designated as appellants must be named as appellees. A notice of appeal of agency rulemaking actions need not name all persons participating in the rulemaking proceeding as appellees. The agency and all parties of record have the right to participate in the appeal. In the appeal ofagency rulemaking action, any person who has participated in the rulemaking process has the rightto participate in the appeal. 6. A bond or other undertaking for costs on appeal must be filed by the appellant as is required by appellants for costs on appeal in civil cases under the rules of appellate procedure. The bond or other undertaking must be filed with the clerk of the district court with the notice of appeal, must be made to the state of North Dakota, and may be enforced bythe agency concerned for and on behalfofthe state as obligee. A bond or other undertaking is not required when filing fees have been waived by a district court pursuant to section 27-01-07 or when the costs of preparation and filing of the record of administrative agency proceedings have been waived by a district court pursuantto subsection 3ofsection 28-32-44.
28-32-43. Docketing ofappeals. Appeals taken in accordance with this chapter must be docketed as other cases pending in the district court are docketed and must be heard and determined by the court without ajury at such time as the court shall determine.
Page No. 2128-32-44. Agency to maintain and certify record on appeal. 1. An administrative agency shall maintain an official record of each adjudicative proceeding orotheradministrative proceeding heard by it. 2. Within thirty days, or a longer time as the court by order may direct, after an appeal has been taken to the district court as provided in this chapter, and after payment by the appellant ofthe estimated cost of preparation and filing ofthe entire record ofthe proceedings before the agency, the administrative agency concerned shall prepare and file in the office ofthe clerk ofthe district court in which the appeal is pending the original or a certified copy ofthe entire record ofproceedings before the agency, or an abstract of the record as may be agreed upon and stipulated by the parties. Upon receiving a copy of the notice of appeal and specifications of error pursuant to subsection 4 of section 28-32-42 and unless the agency is appealing, the administrative agency shall notify the party appealing of the estimated costs of preparation and filing of the record. Thereafter, unless the agency is appealing, the party appealing shall pay the administrative agency the estimated costs required by this subsection. Ifthe actual costs of preparation and filing ofthe entire record ofthe proceedings is greater than the estimated costs, the party appealing shall pay to the agency the difference. Ifthe actual costs are less than the estimated costs, the agency shall pay to the party appealing the difference. Any payment for the costs of preparation and filing ofthe record must be paid into the insurance recovery fund and is appropriated as a refund to the agency for the purposes of defraying the costs of preparing and filing the record. An agency may contract with any person or another agencyto prepare and file the record ofany proceeding beforethe agency. 3. The cost of preparation and filing of the record may be waived by the district court upon application by an appellant, showing that the appellant is a low-income person unable to afford these costs. When a waiver is granted, the costs of preparation and filing ofthe record must be paid bythe administrative agency. 4. The agency record of the proceedings, as applicable, may consist of only the following: a. The complaint, answer, and other initial pleadings ordocuments. b. Notices ofall proceedings. c. Any prehearing notices, transcripts, documents, ororders. d. Any motions, pleadings, briefs, petitions, requests, and intermediate rulings. e. Astatementofmatters officially noticed. f. Offers ofproofand objections and rulings thereon. g. Proposed findings, requested orders, and exceptions. h. The transcript of the hearing prepared for the person presiding at the hearing, including all testimony taken, and any written statements, exhibits, reports, memoranda, documents, or other information or evidence considered before final disposition ofproceedings. 

### i. Any recommended or proposed order, recommended or proposed findings offact and conclusions oflaw, final order, final findings offact and conclusions oflaw, or findings offact and conclusions oflawororders on reconsideration. j. Any information considered pursuantto section 28-32-25. k. Matters placed on the record afteran ex parte communication. 5. Except to the extent that this chapter or another statute provides otherwise, the agency record constitutes the exclusive basis for administrative agency action and judicial review ofan administrative agency action. 6. The record on review ofagency rulemaking action, as applicable, may consist of only the following: a. All agency notices concerning proposed rulemaking. b. Acopy ofthe proposed rule upon which written and oral submissionswere made. c. Acopy ofthe rule as submitted for publication. d. Any opinion letters by the attorney general as to a rule's legality orthe legality of the agency's rulemaking action.

Page No. 22e. A copy ofany interim rule and the agency's findings and statement ofthe reasons for an interim rule. f. The regulatory analysis ofa proposed rule. g. Thetranscript ofany oral hearing on a proposed rule. h. All written submissions madeto the agency on a proposed rule. i. Any staff memoranda or data prepared for agency consideration in regard to the proposed rule. j. Any otherdocumentthatthe agency believes is relevantto the appeal. k. Any other document that is not privileged and which is a public record that the appellant requeststhe agencyto include in the record, ifrelevantto the appeal. 7. Ifthe notice ofappeal specifiesthat no exception orobjection is madeto the agency's findings offact, and thatthe appeal is concerned only with the agency's conclusions of law based on the facts found by it, the agency may submit an abstract ofthe record along with such portions of the record as the agency deems necessary, to be supplemented by those portions of the record requested to be submitted by the appellantor bythe other partywhen the agency is appealing. 8. The court may permit amendments or additions to the record filed by the administrative agency in orderto completethe record.
28-32-45. Consideration ofadditional orexcluded evidence. If an application for leave to offer additional testimony, written statements, documents, exhibits, or other evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that the additional evidence is relevant and material and that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and material to the issues involved and was rejected or excluded by the agency, the court may order that the additional evidence be taken, heard, and considered by the agency on terms and conditions as the court may deem proper. After considering the additional evidence, the administrative agency may amend or reject itsfindings offact, conclusions oflaw, and orderand shall file with the court a transcript ofthe additional evidence with its new or amended findings offact, conclusions oflaw, and order, ifany, which constitute a part ofthe record with the court.
28-32-46. Scope of and procedure on appeal from determination of administrative agency. A judge of the district court must review an appeal from the determination of an administrative agency based only on the record filed with the court. After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court must affirmthe orderofthe agency unless it findsthat any ofthefollowing are present: 1. The order is not in accordancewith the law. 2. The order is in violation ofthe constitutional rights ofthe appellant. 3. The provisions ofthis chapter have not been complied with in the proceedings before the agency. 4. The rules or procedure ofthe agency have notafforded the appellant afair hearing. 5. The findings offact made by the agency are not supported by a preponderance ofthe evidence. 6. The conclusions of law and order of the agency are not supported by its findings of fact. 7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency bythe appellant. 8. The conclusions oflaw and orderofthe agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative lawjudge. Ifthe order ofthe agency is not affirmed by the court, it must be modified or reversed, and the case shall be remanded to the agencyfor disposition in accordancewith the orderofthe court.

Page No. 2328-32-47. Scope ofand procedureon appealfrom agency rulemaking. A judge of the district court shall review an appeal from an administrative agency's rulemaking action based only on the record filed with the court. If an appellant requests documents to be included in the record but the agency does not include them, the court, upon application by the appellant, may compel their inclusion. After a hearing, the filing of briefs, or other disposition ofthe matter as the judge may reasonably require, the court shall affirm the agency's rulemaking action unless itfinds that any ofthefollowing are present: 1. The provisions of this chapter have not been substantially complied with in the agency's rulemaking actions. 2. A rule published as a result of the rulemaking action appealed is unconstitutional on the face ofthe language adopted. 3. A rule published as a result ofthe rulemaking action appealed is beyond the scope of the agency's authorityto adopt. 4. A rule published as a result of the rulemaking action appealed is on the face ofthe language adopted an arbitrary or capricious application ofauthority granted by statute. Ifthe rulemaking action ofthe agency is not affirmed by the court, it must be remanded to the agency for disposition in accordance with the order ofthe court, or the rule or a portion ofthe rule resulting from the rulemaking action of the agency must be declared invalid for reasons stated bythe court.
28-32-48. Appeal

- Stay ofproceedings. An appeal from an order orthe rulemaking action ofan administrative agency does not stay the enforcement of the order or the effect of a published rule unless the court to which the appeal is taken, upon application and after a hearing orthe submission ofbriefs, orders a stay. The court may impose terms and conditions for a stay ofthe enforcement ofthe order or for a stay in the effect ofa published rule. This section does not prohibitthe operation ofan automatic stay upon the enforcement ofan administrative orderas may be required by anotherstatute.
28-32-49. Reviewinsupreme court. The judgment of the district court in an appeal from an order or rulemaking action of an administrative agency may be reviewed in the supreme court on appeal in the same manner as provided in section 28-32-46 or 28-32-47, except that the appeal to the supreme court must be taken within sixty days after the service ofthe notice of entry ofjudgment in the district court. Any party of record, including the agency, may take an appeal from the final judgment ofthe district courtto the supreme court. Ifan appeal from thejudgmentofthe district court is taken by an agency, the agency may not be required to pay a docket fee or file a bond for costs or equivalent security.
28-32-50.Actions againstadministrativeagencies -Attorney'sfees and costs. 1. In any civil judicial proceeding involving as adverse parties an administrative agency and a party not an administrative agency or an agent of an administrative agency, the court must award the party not an administrative agency reasonable attorney's fees and costs if the court finds in favor of that party and, in the case of a final agency order, determinesthatthe administrative agency acted without substantialjustification. 2. This section applies to an administrative or civil judicial proceeding brought by a party not an administrative agency against an administrative agency forjudicial review of a final agency order, or for judicial review pursuant to this chapter of the legality of agency rulemaking action ora rule adopted by an agency as a result ofthe rulemaking action being appealed. 3. Any attorney's fees and costs awarded pursuant to this section must be paid from funds available to the administrative agency the final order, rulemaking action, or rule ofwhich was reviewed bythe court. The court maywithhold all or part ofthe attorney's fees from any award ifthe courtfinds the administrative agency's action, in the case of a final agency order, was substantially justified or that special circumstances exist which makethe award of all ora portion ofthe attorney's fees unjust.

Page No. 244. This section does not alter the rights of a party to collect any fees under other applicable law. 5. In any civil judicial proceeding involving adverse parties to an appeal or enforcement action involving an environmental permit issued under chapter 23-20.3, 23-25, 23-29, or 61-28 in which two or more ofthe adverse parties are not an administrative agency or an agent of an administrative agency, the court may award the prevailing nonagency party reasonable attorney's fees and costs ifthe courtfinds in favor ofthat party and determinesthatthe nonprevailing nonagency party acted without substantial justification, or on the basis ofclaims orallegationsthat are factually unsupported. The court shall award reasonable attorney's fees and costs ifthe court determines that the nonprevailing nonagency party's claims or allegations are frivolous as provided in section 28-26-01. Ifthe appeal or civil judicial proceeding covered by this subsection involves multiple claims or allegations, the court may apportion attorney's fees and costs in proportion to the time reasonably spent by a prevailing party relating to claims pursued by the nonprevailing party that were frivolous, factually unsupported, or without substantialjustification.
28-32-51. Witnesses -Immunity. Ifany person objects to testifying or producing evidence, documentary or otherwise, at any proceeding before an administrative agency, claiming a privilege against self-incrimination, but is directed to testify or produce evidence pursuant to the written approval of the attorney general, that person must comply with the direction but no testimony or evidence compelled from that person, after a valid claim of privilege against self-incrimination has been made, may be used against that person in any criminal proceeding subjecting that person to a penalty or forfeiture. No person testifying at any proceeding before an administrative agency may be exempted from prosecution and punishment for perjury or giving a false statement, or for contempt committed in answering, or failing to answer, or in producing, or in failing to produce, evidence pursuantto direction given underthis section.
28-32-52. Elected official authority. This chapter does not prohibit an elected official from presiding at that agency's cases, nor from deciding cases within that agency'sjurisdiction.

Page No. 25

### TITLE 23 HEALTH AND SAFETY 

### CHAPTER23-01 STATE DEPARTMENT OF HEALTH
23-01-01. State departmentofhealth - Officers. The state department of health consists of a health council, a state health officer, section chiefs, directors ofdivisions, and otheremployees ofthe department.
23-01-01.1. State department of health to replace state department of health and consolidated laboratories. Wherever the terms "North Dakota state department of health", "department of health", "health department", "state department of health and consolidated laboratories", "North Dakota state laboratories department", "state laboratories department", "state laboratories department director", or "state laboratories director" appear in this code, the term "state department of health" must be substituted therefor. Wherever the terms "state food commissioner and chemist" and "commissioner" when referring to the state food commissioner and chemist appear in chapters 19-17 and 19-18, the term "state department of health" must be substituted therefor.
23-01-01.2. State department of health designated primary state environmental agency. The statedepartment of health is the primary state environmental agency. 23-01-02. Health council - Members, terms of office, vacancies, compensation, officers, meetings. The health council consists of eleven members appointed by the governor in the following manner: four persons from the health care field, five persons representing consumer interests, one person from the energy industry, and one from the manufacturing and processing industry. The governor may select members to the council from recommendations submitted by trade, professional, and consumer organizations. On the expiration of the term of any member, the governor, in the manner provided bythis section, shall appointfor aterm ofthree years, persons to takethe place of memberswhose terms on the council are aboutto expire. The officers ofthe council must be elected annually. Any state agency may serve in an advisory capacity to the health council at the discretion of the council. The council shall meet at least twice each year and at other times as the council or its chairman may direct. The health council shall have as standing committees any committees the council may find necessary. The chairman of the council shall select the members ofthese committees. The members ofthe council are entitled to receive sixty-two dollars and fifty cents as compensation perday and their necessary mileage and travel expenses as provided in sections 44-08-04 and 54-06-09 while attending council meetings or in the performance of any special duties as the council may direct. The per diem and expenses must be audited and paid in the manner in which the expenses of state officers are audited and paid. The compensation provided for in this section may not be paid to any member ofthe council who received salary or other compensation as a regular employee ofthe state, orany ofits political subdivisions, orany institution or industry operated bythe state.
23-01-02.1. Hospital utilization committees - Internal quality assurance review committees - Reports - Immunity. Repealed by S.L. 1997, ch. 234, 

### § 5.
23-01-03. Powers and duties ofthe health council. The health council shall: 1. Fix, subject to the provisions of section 23-01-02, the time and place ofthe meetings ofthe council.
Page No.12. Make rules and regulations for the government of the council and its officers and meetings. 3. Establish standards, rules, and regulations which are found necessary for the maintenance ofpublic health, including sanitation and disease control. 4. Provide for the development, establishment, and enforcement of basic standards for hospitals and related medical institutions which render medical and nursing care, and for the construction and maintenance of such institutions, such standards to cover matters pertaining to sanitation, building construction, fire protection measures, nursing procedures, and preservation of medical records. No rule may be adopted with respect to building construction of existing medical hospitals or related medical institutions unless the rule relates to safety factors or the hospital or related medical institution changes the scope of service in such a way that a different license is required from the department pursuantto rules adopted under chapter23-16. 5. Hold hearings on all matters brought before it by applicants and licensees of medical hospitals with reference to the denial, suspension, or revocation of licenses and make appropriate determination as specified herein. The council may directthe state health officer to do or cause to be done any or all ofthe things which may be required in the proper performance ofthe various duties placed upon the state department ofhealth.
23-01-03.1. Newborn metabolicand geneticdiseasescreeningtests. The health council may authorize the use of newborn metabolic and genetic disease screening tests, as provided for in chapter25-17, for research purposes. The council shall adopt rules to ensure thatthe results are used for legitimate research purposes and to ensure thatthe confidentiality ofthe newborns and theirfamilies is protected.
23-01-03.2. Duties ofthe health council. The health council shall: 1. Monitoroverall health care costs and quality ofhealth care in the state. 2. Recommend to the appropriate interim legislative committees changes to the health care system in the state. 3. Publish an annual report on health care in the state.
23-01-03.3. Long-term care nursing scholarshipand loan repaymentgrantprogram. 1. The state health council, in cooperation with the North Dakota long term care association, shall administer the long-term care nursing scholarship and loan repayment grant program. The purpose ofthe program is to provide matching funds to nursing facilities for the facilities to use in recruiting and retaining nurses by providing scholarships to nursing facility staffand other individuals to obtain a nursing education and by assisting in the repayment ofstudent loans for licensed nurses employed in a nursing facility. The state health council shall adopt rules necessary to administer the program, including rules establishing criteria regarding eligibility for and distribution of program grants. 2. An applicantfor a program grantshall establish thatthe applicant: a. Is a licensed nursing facility; b. Has available matching funds equal to the amount ofthe grant request; and c. Meetsthe eligibility criteria established by rule. 3. An eligible applicant may receive a program grant not exceeding five thousand five hundred dollars in the first year of the biennium. Any funds appropriated by the legislative assembly for the grant program which are remaining after the first year of the biennium may be distributed to eligible ·applicants in the second year of the biennium in any amount determined bythe state health council.

Page No.223-01-04. Effectofrulesand regulations. All rules and regulations promulgated by the health council under the powers granted by any provisions ofthis title are binding upon all county and municipal health officers, and upon all county, municipal, and private medical hospitals and upon related institutions, and have the force and effect oflaw.
23-01-04.1. Rulemaking authorityand procedure. 1. Except as provided in subsection 2, no rule which the state department of health, hereinafter the department, adopts for the purpose of the state administering a program under the federal Clean Air Act, federal Clean Water Act, federal Safe Drinking Water Act, federal Resource Conservation and Recovery Act, federal Comprehensive Environmental Response, Compensation and Liability Act, federal Emergency Planning and Community Right to Know Act of 1986, federal Toxic Substances Control Act, or federal Atomic EnergyAct of 1954, may be more stringent than corresponding federal regulations which address the same circumstances. In adopting such rules, the department may incorporate by reference corresponding federal regulations. 2. The department may adopt rules more stringent than corresponding federal regulations or adopt rules where there are no corresponding federal regulations, for the purposes described in subsection 1, only if it makes a written finding after public comment and hearing and based upon evidence in the record, that corresponding federal regulations are not adequate to protect public health and the environment of the state. Those findings must be supported by an opinion ofthe department referring to and evaluating the public health and environmental information and studies contained in the record which form the basisforthe department's conclusions. 3. Ifthe department, upon petition by any person affected by a rule of the department, identifies rules more stringent than federal regulations or rules where there are no corresponding federal regulations, the department shall review and revise those rules to complywith this section within nine months ofthe filing ofthe petition. 4. All existing rules ofthe department remain in full force and effect after July 10, 1989, pending department review and revision undersubsection 3. 5. Any person who is issued a notice of violation, or a denial of a permit or other approval, based upon a rule of the department which is more stringent than a corresponding federal regulation orwhere there is no corresponding federal regulation, may assert a partial defense to that notice, or a partial challenge to that denial, on the basis and to the extent that the department's rule violates this section by imposing requirements more stringent than corresponding federal regulations, unless the more stringent rule ofthe department has been adopted in compliancewith this section. 6. The provisions ofthis section may not be construed so as to require the departmentto review and propose revisions to any existing rule regarding the collection of fees by the department in connection with the administration of any program identified in subsection 1.
23-01-04.2. Legislative intent

- Healthvaccination charges. It is the intent of the legislative assembly that the state department of health adopt rules defining appropriate administration charges for vaccine provided by the department to physicians, private clinics, and hospitals.
23-01-04.3. Alternative health care services pilot project

- Application

- Notice

- Hearing -Approval

- Duration. 1. At anytime thatthe health care needs ofa city, township, or other geographic area are not being adequately met, any person may apply to the state health council for approval to conduct an alternative health care services pilot project. The application must address the need for and benefits of the pilot project. It must also contain a

Page No.3detailed description of the nature and scope of the project, quality control, organization, accountability, responsibility, and financial feasibility. 2. Upon receipt of an application under subsection 1, the state health council shall schedule a public hearing, send notice to all interested parties, and give public notice ofthe hearing by publication in the official newspaperofeach county in the pilot project area. At the hearing, the council shall accept written and oral testimony. The council shall review the application and all testimony presented at the hearing and approve, disapprove, or modify and approve the application based on criteria established by the council. The criteria must address the availability and use of health personnel, facilities, and services. 3. Notwithstanding any other provisions of law, upon approval ofan application submitted undersubsection 1, the state health council, in consultation with the state health officer and any other public or private entity consulted by the state health council, shall set the standards for the delivery of health care services by the pilot project. The standards may not adversely affect the state's participation in federal medicare and medicaid programs. No more than three separate projects may be operational at any time and no project may be operational for longerthan five years.
23-01-05. Health officer- Qualifications, salary, term, duties -Advisory committee. The governorshall appointthe state health officerwho must have had substantive private or public administrative experience and demonstrated experience in the management of people. The state health officer is entitled to receive a salary commensurate with that person's training and experience. The governor shall set the salary ofthe state health officer within the limits of legislative appropriations to the department. The state health officer is entitled to receive all necessary traveling expenses incurred in the performance of official business. The state health officer may not engage in any other occupation or business that may conflict with the statutory duties ofthe state health officer and holds office for a term of four years beginning January 1, 1993. The state health officer is the administrative officer ofthe state department of health. Ifthe governor does not appoint as state health officer a physician licensed in this state, the governor shall appoint at least three licensed physicians recommended by the state medical association to serve as an advisory committee to the state health officer. Each member of the advisory committee is entitled to receive reimbursement of expenses in performing official duties in amounts provided by lawfor other state officers. The term ofthe advisory committee coincides with the term of the state health officer. A committee member serves at the pleasure of the governor. The duties ofthe state health officer are as follows: 1. Enforce all rules and regulations as promulgated bythe health council. 2. Hold public health unit boards of health responsible for enforcement of state rules, serve in an advisory capacity to public health unit boards of health, and provide for coordination ofhealth activities. 3. Establish and enforce minimum standards of performance of the work of the local department ofhealth. 4. Study health problems and plan fortheir solution as may be necessary. 5. Collect, tabulate, and publish vital statistics for each important political or health administrative unit ofthe state and forthe state as awhole. 6. Promote the development of local health services and recommend the allocation of health funds to localjurisdictions subjectto the approval ofthe health council. 7. Collect and distribute health education material. 8. Maintain a central public health laboratory and where necessary, branch laboratories for the standard function of diagnostic, sanitary and chemical examinations, and production and procurement of therapeutic and biological preparations for the prevention ofdisease and theirdistributionfor public health purposes. 9. Establish a service for medical hospitals and related institutions to include licensing of such institutions according to the standards promulgated by the health council and consultation service to communities planning the construction of new hospitals and related institutions. 10. Complywith the state merit system policies ofpersonnel administration.
Page No.411. Establish a program to provide information to the surviving family of a child whose cause ofdeath is suspected to have been the sudden infant death syndrome. 12. Issue any orders relating to disease control measures deemed necessary to prevent the spread of communicable disease. Disease control measures may include special immunization activities and decontamination measures. The state health officer may apply to the district court in ajudicial districtwhere a communicable disease is present for an injunction canceling public events or closing places of business. On application of the state health officer showing the necessity of such cancellation, the court may issue an ex parte preliminary injunction, pending afull hearing. 13. Make bacteriological examination of bodily secretions and excretions and of waters and foods. 14. Make preparations and examinations of pathological tissues submitted by the state health officer, by any county superintendent of public health, or by any physician who has been regularly licensed to practice in this state. 15. Make all required analyses and preparations, and furnish the results thereof, as expeditiously and promptly as possible. 16. Cause sanitary statisticsto be collected and tabulated, and cause to be ascertained by research work such methods as will lead to the improvement of the sanitation of the various parts ofthe state. 17. From time to time, cause to be issued bulletins and reports setting forth the results of the sanitary and pathological work done in the laboratories embodying all useful and important information resulting from the work carried on in the laboratories during the year, the substance of such bulletins and reports to be incorporated in the annual report ofthe state health officer. 18. Establish by rule a schedule of reasonable fees that may be charged for laboratory analysis. No charge may be made for any analysis conducted in connection with any public health incident affecting an entire region, community, or neighborhood. 19. a. Establish a review process for instances in which the department is requested to conduct an epidemiological assessment of a commercial building. The epidemiological assessment must include: (1) Astatement ofwhetherthere are known environmental causes; (2) If there are known environmental causes identified, a recommendation of howthey can be remediated or mitigated; and (3) Ifthere are no known environmental causes identified, a statement that no known causes exist. b. Costs for remediation, mitigation, and consultant services arethe responsibility of the building owner. Proof of remediation of any identified environmental concern related to the epidemiological assessment is the burden ofthe building owner.
23-01-05.1. Organ or tissue transplant assistance administration

- Standing appropriation. The state health officer shall select a private nonprofit patient-oriented organization incorporated in this state forthe purpose ofadministering financial assistance to organ ortissue transplant patients who are residents of this state. The state health officer shall adopt rules governing administration ofthis section. The organization selected shall administer and provide grants from available funds to alleviate demonstrated financial needs oftransplant patients for any costs associated with transplant operations, under guidelines based on current social service eligibility requirements. There is hereby created as a special fund in the state treasury an organ transplant support fund, the principal and income ofwhich is hereby appropriated to the organization selected underthis section. The organization administering the fund may solicit contributions from private or governmental sources and such contributions may be deposited in thefund.
23-01-05.2.Administration ofepinephrine- Liability. 1. The state health officer shall adopt rules to authorize a layperson to administer epinephrineto an individualwho has asevere allergic reaction.
Page No.52. An individual authorized to administer epinephrine by the state health officer may obtain premeasured doses of epinephrine and the necessary paraphernalia for epinephrine administration from any licensed physician or pharmacist. 3. An individual authorized to administer epinephrine by the state health officer, and the employer ofsuch an individual, is not civilly or criminally liable for any act or omission ofthat individual when acting in good faith while rendering emergency treatment to an individual who has a severe adverse reaction, except when the conduct amounts to gross negligence.
23-01-05.3. Immunization data. 1. The state department of health may establish an immunization information system and may require the childhood immunizations specified in subsection 1 of section 23-07-17.1 and other information be reported to the department. The state department of health may only require the reporting of childhood immunizations and other data upon completion of the immunization information reporting system. A health care providerwho administers a childhood immunization shall reportthe patient's identifying information, the immunization that is administered, and other required information to the department. The report must be submitted using electronic media, and must contain the data content and usethe format and codes specified bythe department. 2. If a health care provider fails to submit an immunization report required under this section within fourweeks ofvaccination: a. That health care provider may not order or receive any vaccine from the North Dakota immunization program until that provider submits all reports required underthis section. b. The state department of health shall make a report to that health care provider's occupational licensing entity outlining that provider's failure to comply with the reporting requirements underthis section. 3. Notwithstanding any other provision of law, a health care provider, elementary or secondary school, early childhood facility, public or private postsecondary educational institution, city orcounty board ofhealth, district health unit, and the state health officer may exchange immunization data in any mannerwith one another. Immunization data that may be exchanged under this section is limited to the date and type of immunization administered to a patient and may be exchanged regardless ofthe date ofthe immunization.
23-01-05.4. Departmentto employstateforensic examiner- Qualifications- Duties. The state department of health may employ and establish the qualifications and compensation ofthe state forensic examiner. The state forensic examiner must be a physician who is board-certified or board-eligible in forensic pathology, who is licensed to practice in this state, and who is in good standing in the profession. The state forensic examiner shall: 1. Exercise all authority conferred upon the coroner under chapter 11-19.1 and any other law; 2. Consultwith local coroners on the performance oftheir duties as coroners; 3. Conduct investigations into the cause of death of and perform autopsies on any deceased human body whenever requested to do so by the acting local county coroner orthe local state's attorney; 4. Provide training and educational materials to local county coroners, law enforcement, and any other person the state forensic examinerdeems necessary; 5. Maintain complete records of the cause, manner, and mode of death necessary for accurate health statistics and for public health purposes; and 6. Perform otherduties assigned by the state health officer.
23-01-05.5.Autopsy reports - Confidential - Exceptions. 1. As used in this section:

Page No.6a. "Autopsy report" means the report of the forensic examiner or the examiner's designee on the post-mortem examination of a deceased individual to determine the cause and manner of death, including any written analysis, diagram, photograph, ortoxicological test results. b. "Report ofdeath" meansthe official findings on the cause ofdeath and mannerof death issued by the state forensic examiner, the examiner's designee, county coroner, or pathologist performing an autopsy ordered by a county coroner or by the state forensic examiner and which is the face page of the autopsy report identifying the decedent and stating the cause ofdeath and mannerofdeath. 2. An autopsy report and any working papers and notes relating to an autopsy report are confidential and may be disclosed only as permitted by this section. The report of death is a public record subjectto disclosure undersection 44-04-18. 3. Subject to the limitations on the disclosure of an autopsy photograph or other visual image or video or audio recording of an autopsy required under section 44-04-18.18, any working papers and notes relating to a final autopsy report may be disclosed pursuantto acourt orderand as otherwise expressly provided by law. 4. The state forensic examiner or the examiner's designee shall disclose a copy ofthe autopsy report: a. To any county coroner, including a coroner in any state or Canadian province, with jurisdiction over the death, and the coroner may use or disclose these records for purposes ofan investigation, inquest, or prosecution. b. To any state's attorney or criminal justice agency, including a prosecutor or criminaljustice agency ofthe United States, any state, orany Canadian province, with jurisdiction over an investigation of the death and the state's attorney or criminal justice agency may use or disclose these records for the purposes of an investigation or prosecution. c. To workforce safety and insurance ifthe death is related to the decedent's work, and to any otherworkers' compensation or other similar program, established by law, that provides benefits for work-related injuries or illness without regard to fault ifthere is no criminal investigation. d. To the child fatality review panel ifthere is no active criminal investigation. e. In accordancewith acourt order. 5. The state forensic examiner orthe examiner's designee upon request shall disclose a copy ofthe autopsy reportto: a. The decedent's personal representative and to the decedent's spouse, child, or parent, upon proofofthe relationship, ifthere is no active criminal investigation. b. A physician or hospital who treated the deceased immediately prior to death if there is no active criminal investigation. c. An insurance company upon proof that the decedent's life was covered by a policy issued bythe company ifthere is no active criminal investigation. d. The food and drug administration, the national transportation safety board, the occupational health and safety administration, and any other federal or state agency with authority to obtain an autopsy report to investigate a death resulting from the decedent'stype of injury or illness. e. A professional or research organization collecting data to initiate or advance death investigation standards, after the identifiers necessary to create a limited data set under title 45, Code of Federal Regulations, part 164, section 514, subsection e have been removed from the report. 6. Theforensic examiner, the examiner's designee, any county coroner orcounty medical coroner, and any public employee who, in good faith, discloses autopsy findings, an autopsy report, orother information relating to an autopsy report or cause ofdeath to a person who the public official or employee reasonably believes is entitled to that information underthis section is immune from any liability, civil or criminal, for making that disclosure. For the purposes of any proceeding, the good faith of any public employeewho makes adisclosure underthis section is presumed.

Page No.723-01-06. Biennial report

- Contents. The state health officer shall submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04. In addition to any requirements established pursuant to section 54-06-04, the report must coverthe following subjects: 1. The activities of the various divisions, the work accomplished during the two years covered bythe report, and an analysis ofthe program ofeach ofthe divisions. 2. The expenditures ofthe state department ofhealth. 3. The expenditures in each county board of health orthe district board of health. 4. Any reports relating to the hospital program as required bythe health council.
23-01-07. Structureofdepartment. Repealed byS.L.1993, ch. 218, 

### § 10.
23-01-08. Directorsofdivisions- Deputy -Appointment, salary, duties. The state health officer shall appoint directors ofthe various divisions ofthe department and shall determinethe salary, within the limits of legislative appropriations to the department and in conformity with the state merit system, to be received by such persons. The duties of such director must be those prescribed by the state health officer. The state health officer may appoint a deputy state health officer. A deputy state health officer who does not hold a health-related degree may not individually issue an order regarding public health unless the order is cosigned by a physician who is employed by the department or cosigned by the state epidemiologist. The deputy state health officer serves atthe pleasure ofthe state health officer.
23-01-09. Dutiesofdirectorofconsolidated laboratories branch. Repealed byS.L.1993, ch. 218, 

### § 10.
23-01-09.1. Duties ofstatetoxicologist. Repealed by S.L. 2003, ch. 469, 

### § 13.
23-01-10. Officespace. The state shall provide suitable office space in Bismarck for housing and maintaining the state department ofhealth. Special fireproofvaults must be provided forthe storage ofbirth and death certificates.
23-01-11. Acceptance of funds and right to qualify for benefits under federal laws authorized. The state department ofhealth may: 1. Accept funds from cities, counties, the federal government, private organizations, and individuals for infancy and maternal hygiene, for other public health work and for the purpose of conducting a survey of existing medical hospitals and related institutions, planning of needed hospital construction and for construction and maintenance of such medical hospitals and related institutions. When approved by the governor ofthis state, the state department of health may match the same from any unexpended portion of its appropriation in accordance with specifications agreed to or required by congressional act. All infancy and maternal hygiene and public health work must be done underthe supervision ofthe state department of health. 2. Adopt rules necessary to enable the state to be in compliance with any federal laws in order to qualify for any federal funds related to medical facilities or agencies licensed bythe state department of health.
23-01-12. Hospital recordsto be kept atdirection ofstate health officer. When any person is admitted into a lying-in hospital or other institution, public or private, to which persons resort for the treatment of disease or for confinement, or to which persons are committed by process of law, the superintendent, manager, or other person in charge of such institution shall make a record of all the personal and statistical particulars relative to such
Page No.8person. The record must be in such form as is directed by the state health officer. In the case of any person admitted or committed for medical treatment of disease, the physician in charge shall specify for entry in the records the nature of the disease and where, in the physician's opinion, itwas contracted. The personal particulars and information required for compliancewith the provisions ofthis section must be obtained from the individual personally if practicable, and when the information cannot be obtained from the individual, from the individual's relatives or friends orfrom any other person acquainted with the facts.
23-01-13. Blood plasma

- Obtaining, storing, and distributing. Repealed by S.L. 1991, ch. 263, 

### § 1.
23-01-14. State departmentofhealthauthorizedtotransferfutureaccumulatedfees. As a continuing policy, the state department of health may automatically from time to time transfer unclaimed fees on depositwith the Bank of North Dakota orother authorized depository to the state general fund when the unclaimed status has existed for a period of at least three years.
23-01-15. Research studies confidential

- Penalty. 1. All information, records of interviews, written reports, statements, notes, memoranda, or other data procured by the state department of health, in connection with studies conducted by the state department of health, or carried on by the departmentjointly with other persons, agencies, or organizations, or procured by such other persons, agencies, or organizations, for the purpose of reducing the morbidity or mortality from any cause or condition of health is confidential and must be used solely for the purposes of medical orscientific research. 2. Such information, records, reports, statements, notes, memoranda, or other data is not admissible as evidence in any action of any kind in any court or before any other tribunal, board, agency, or person. Such information, records, reports, statements, notes, memoranda, or other data may not be exhibited northeir contents disclosed in any way, in whole or in part, by any officer or representative ofthe state department of health, nor by any other person, except as may be necessary for the purpose of furthering the research project to which they relate. No person participating in such research project may disclose, in any manner, the information so obtained except in strict conformitywith such research project. No officer oremployee ofsaid department may interview any patient named in any such report, nora relative ofany such patient, unlessthe consent ofthe attending physician and surgeon is first obtained. 3. The furnishing of such information to the state department of health or its authorized representative, or to any other cooperating agency in such research project, does not subject any person, hospital, sanitarium, rest home, nursing home, or other person or agencyfurnishing such information, to any action for damages orother relief.
23-01-16. Dairy products- Jointstandards. The state department of health and the dairy department of the department of agriculture shall jointly adopt a set of uniform standards in relation to all matters falling within their joint jurisdiction regarding dairy products. The state department of health, district health units, municipal health departments or units, and the dairy department shall each be permitted to accept any inspection report of the other department or unit regarding the inspection of dairy products and the producers and processors of such products, when such report is based substantially upon standards conforming with the milk ordinance and code recommended bythe United States public health service.
23-01-17. Noise harmful to health and safety- Powerto regulate- Hearings-AppealPenalty -Injunction. Repealed by S.L. 1991, ch. 264, 

### § 1.

Page No.923-01-18. State departmentofhealth responsibleforcontrolofrabies. Repealed by S.L. 1999, ch. 243, 

### § 2.
23-01-19. Extermination ofrabies. Repealed by S.L. 1999, ch. 243, 

### §2.
23-01-20. Traumatic head injurydefined. Repealed by S.L. 1999, ch. 231, 

### § 1.
23-01-21. Central registry oftraumatic head injury

- Establishment

- Reports. Repealed by S.L. 1999, ch. 231, 

### § 1.
23-01-22. Departmenttoemploywaste managementfacility inspectors. The state department of health shall employ and establish the qualifications, duties, and compensation ofat least one full-time inspectorfor each commercial, nonpublicly owned waste management disposal or incineration facility that accepts more than twenty-five thousand tons [22679.5 kilograms] per year of hazardous waste, industrial waste, nuclear waste, or ash resulting from the incineration of municipal solid waste. This section does not apply to any energy conversion facility or coal mining operation that disposes of its solid waste onsite. The department may require inspectorsforthose facilities that accept lessthan twenty-fivethousand tons [22679.5 kilograms] per year. The facility inspector shall conduct regular inspections ofthe operating procedure and conditions ofthe facility and report the findings to the department on a regular basis. If an inspector discovers a condition at a facility that is likely to cause imminent harm to the health and safety of the public or environment, the inspector shall notify the department. The departmentshall proceed as provided by sections 23-29-10 and 23-29-11. The department shall assess the owner or operator of a waste management facility that accepts hazardous waste, industrial waste, nuclearwaste, or ash resulting from the incineration of municipal solid waste an annual fee to pay the salaries, wages, and operating expenses associated with employing an inspectorforthe facility. The owner or operator ofthe facility shall submitthe fee to the department by Julyfirst ofeach year. Anyfees collected must be deposited in the department's operating fund in the state treasury and any expenditures from the fund are subjectto appropriation bythe legislative assembly. Ifafacility begins operation afterJulyfirst of any year, the owner or operator ofthe facility shall pay to the department a prorated fee for the fiscal year before the facility may begin accepting waste. Moneys in the waste management facility account may be spent bythe departmentwithin the limits oflegislative appropriation.
23-01-23. Permit or investigatory hearings

- Exemption from chapters 28-32 and 

### 54-57. A permit hearing conducted for purposes of receiving public comment or an investigatory hearing conducted under chapters 23-20.1, 23-20.3, 23-25, 23-29, 61-28, and 61-28.1 is not an adjudicative proceeding under chapter 28-32 and is not subject to the requirements of chapter 54-57.
23-01-24. Health care costand quality review program - Penalty. The department of health shall conduct a continuous program to review and improve the quality of health care in the state. The department may contract with a qualified person or organization to develop and implement the program. The department shall use the program to compile relevant information about the quality of health care in this state which will allow the department to evaluate the cost, quality, and outcomes of health care. The department shall establish and consult a provider advisory committee composed of health care providers regarding the data that is a cost-effective process for collecting and evaluating the information. The state health officer may assess against a provider a penalty ofone hundred dollars perday for each day the provider willfully refuses to provide the departmentwith information requested for use with the program, but the penalty may not exceed one thousand dollars for each request. A provider against whom a fee is assessed may appeal that assessment to the state

Page No. 10health council. If the provider fails to pay the penalty, the health council may, in the county where the provider's principal place of business is located, initiate a civil action against the provider to collect the penalty. As used in this section, "provider" means a person who is licensed, certified, or otherwise authorized by the law ofthis state to administer health care in the ordinary course of business or professional practice. The department shall ensure that patient privacy is protected throughout the compilation and use of the information. The department shall evaluate data management capabilities in the state and shall organize its capabilities to provide information about the cost ofcare on an individual provider basis as well as acollective basis.
23-01-25. Commercial feed, insecticide, fungicide, rodenticide, fertilizer, and soil conditioner laws

- Laboratoryfunction. Notwithstanding any other provision of law, any laboratory test or analysis required under chapter 19-13.1, 19-18, or 19-20.1 must be performed by the state department of health for the agriculture commissioner at no charge.
23-01-26. Statedepartmentofhealth -Indirectcost recoveries. Notwithstanding section 54-44.1-15, the state department of health may deposit indirect cost recoveries in its operating account.
23-01-27. Donated dental services program. The state department of health shall contract with the North Dakota dental association, or other appropriate and qualified organizations, to develop and administer a donated dental services program through which volunteer dentists provide comprehensive dental care for needy, disabled, aged, or medically compromised individuals. The volunteers will treat individuals through the program and, with the exception of certain dental laboratory costs, will fully donate their services and supplies. The contract must specify the responsibilities of the administering organization and include: 1. Establishment ofa network ofvolunteer dentists, including dental specialists, volunteer dental laboratories, and other appropriate volunteer professionals to donate dental services to eligible individuals; 2. Establishment ofa system to refereligible individualsto appropriatevolunteers; 3. Development and implementation ofa public awareness campaign to educate eligible individuals aboutthe availability ofthe program; 4. Provision ofappropriate administrative and technical supportto the program; and 5. Submission ofan annual reportto the state department of health that: a. Accounts for all program funds; b. Reports the number of individuals served by the program and the number of dentists and dental laboratories participating as providers in the program; c. Includes any other information required bythe state department of health; and d. Performs, as required bythe state departmentofhealth, any otherduty relating to the program. 23-01-28. Combined purchasing with local public health units

- Continuing appropriation. The state department of health may make combined orjoint purchases with or on behalfof local public health units for items or services. Payments received by the state department of health from local public health units pursuantto a combined orjoint purchase must be deposited in the operating fund and are appropriated as a standing and continuing appropriation to the state department ofhealth forthe purpose ofthis section.
23-01-29. Bone marrowdonoreducation. The state department of health shall provide information and educational materials to the public regarding bone marrow donation through the national marrow donor program. The department shall seek assistance from the national marrow donor program to establish a

Page No. 11system to distribute materials, ensure that the materials are updated periodically, and address the education and recruitment ofminority populations.
23-01-30. Zoning regulation of concentrated animal feeding operations - Central repository. The state department of health shall establish, operate, and maintain an electronically accessible central repository for all county and township zoning regulations that pertain to concentrated animal feeding operations. The county auditor of a county and the township clerk ofatownship having azoning regulation that pertains to concentrated animal feeding operations shall file the regulation with the state department of health for inclusion in the central repository.
23-01-31. North Dakota health information technology steering committee. Repealed by S.L. 2009, ch. 519, 

### § 6.
23-01-32. Viral hepatitis program - Vaccination - Study. 1. The state department of health shall establish and administer aviral hepatitis program with the goal of distributing to residents ofthe state who are at an increased risk for exposure to viral hepatitis information that addresses the higher incidence of hepatitis C exposure and infection among these populations, addresses the dangers presented by the disease, and provides contacts for additional information and referrals. 2. The department shall establish a list of classes of individuals by category that are at increased risk for viral hepatitis exposure. The list must be consistent with recommendations developed bythe federal centersfordisease control and prevention. The department shall determine the type of information the department will distribute underthe program and the form and mannerofdistribution. 3. The department shall establish a vaccination and testing program, to be coordinated bythe departmentthrough local public health units.
23-01-33. Human papillomavirus -Information. The state department of health shall educate the public about the human papilloma virus and the availability of a human papilloma virus vaccine; promote immunization against the human papilloma virus; and distribute informational material regarding the human papilloma virus and the human papilloma virus vaccine. The department shall distribute the informational material through relevant department programs and divisions, including breast and cervical cancer control programs; immunization programs; family planning programs; and human immunodeficiency virus and sexually transmitted disease programs. Informational materials distributed must include the recommendations of the advisory committee on immunization practices ofthe federal centers for disease control and prevention; contain information relevant to the target populations of each of the participating programs and divisions distributing the informational material; and contain information regarding the availability ofthe vaccine through the vaccines for children program operated by the department under 42 U.S.C. 1396s, and the medical assistance program.
23-01-34. Children with special health care needs- Program administration. The state department of health shall administer programs for children with special health care needs as may be necessary to conform to title 5, part2, ofthe federal Social SecurityAct, as amended through July 1, 2007 [Pub. L. 74-271; 49 Stat. 620; 42 U.S.C. 701 et seq.], including providing services and assistance to children with special health care needs and their families and developing and operating clinics for the identification, screening, referral, and treatment ofchildren with special health care needs.

Page No. 12

### 23-01-35. Tattooing, body piercing, branding, subdermal implants, or scarification

- Permit

- Fee -Adoption ofrules

- Exemptions

- Injury reports. 1. A person may not operate a facility providing tattooing, body piercing, branding, subdermal implant, or scarification services without a permit issued by the department under this section. The holder of a permit shall display the permit in a conspicuous place at the facility for which the permit is issued. A permit issued under this section expires annually. An applicant for a permit shall submit an application for a permit to the department, on a form provided by the department, with a permit fee established by the department. The application must include the name and complete mailing address and street address of the facility and any other information reasonably required by the departmentforthe administration ofthis section. 2. The health council shall adopt rules to regulate any person that receives compensation for engaging in the practice oftattooing, body piercing, branding, subdermal implants, or scarification. The rules must establish health and safety requirements and limitations with respect to the age of an individual who may receive a tattoo, body piercing, or scarification and may prohibit any practice that the health council deems unsafe or athreatto public health. 3. Afacility is exemptfrom subsection 1 ifthefacility provides body piercing that is limited to the piercing ofthe noncartilaginous perimeter or lobe ofthe ear and the facility does not provide tattooing, branding, scarification, or subdermal implants. A person is exemptfrom regulation undersubsection 2 ifthe person's practice underthis section is limited to piercing of the noncartilaginous perimeter or lobe of the ear. A licensed health care professional acting within that professional's scope of practice and the associated medical facility are exemptfrom this section. 4. Ifacustomer ofafacility regulated underthis section reports to thefacility an injurythe customer or operator ofthe facility believes to have resulted from the tattooing, body piercing, branding, subdermal implanting, or scarification provided at the facility, the operator of the facility shall provide the customer with written information on how to report the alleged injury to the state department of health. If a licensed health care professional treats a patient for an injury the professional determines, in the exercise of professional judgment, occurred as a result of a service regulated under this section, the professional shall report the circumstances to the state department of health. A licensed health care professional is immune from liability for making or not making a report underthis subsection. 5. The fees established by the department must be based on the cost of conducting routine and complaint inspections and enforcement actions and preparing and sending license renewals. Fees collected under this section must be deposited in the department's operating fund in the state treasury and any expenditure from the fund is subject to appropriation by the legislative assembly. The department shall waive all or aportion ofthe fee for anyfacilitythat is subjectto localjurisdiction.


### 23-01-36. Appeal from permit proceedings. An appeal from the issuance, denial, modification, or revocation of a permit issued under chapter 23-20.3, 23-25, 23-29, or 61-28 may be made by the person who filed the permit application, or by any person who is aggrieved by the permit application decision, provided that person participated in or provided comments during the hearing process for the permit application, modification, or revocation. An appeal must be taken within thirty days afterthe final permit application determination is mailed by first-class mail to the permit applicant and to any interested person who has requested a copy ofthe final permit determination during the permit hearing process. Except as provided in this section, an appeal ofthe final permit determination is governed by sections 28-32-40, 28-32-42, 28-32-43, 28-32-44, 28-32-46, and 28-32-49. The department may substitute final permit conditions and written responses to public comments for findings offact and conclusions of law. Except for a violation of chapter 23-20.3, 23-25, 23-29, or 61-28 which occurs after the permit is issued, or any permit condition, rule, order, limitation, or other applicable requirement implementing those chapters which occurs after the permit is issued, any challenge to the department's issuance, modification, or revocation ofthe permit or
Page No. 13permit conditions must be made in the permit hearing process and may not be raised in any collateral or subsequent legal proceeding, and the applicant and any aggrieved person may raise on appeal only issuesthatwere raised to the department in the permit hearing process.
23-01-37. Survey program- Health facilities construction or renovation projects. 1. The state department of health shall conduct a life safety survey process for all health facilities licensed by the division of health facilities ofthe state department of health during and at the conclusion of a construction, renovation, or construction and renovation project. 2. The department may charge a reasonable fee for the review ofplans for construction, renovation, or construction and renovation projects performed under this section based on the size of the project. Revenues derived from the fees collected underthis subsection must be deposited in the department's operating fund in the state treasury. 3. The department shall design and operate the program in a manner that will provide that the surveyor that performs a life safety survey under this section does not violate the federal requirements associated with medicare-certified life safety surveys.
23-01-38. Electronic drug priorauthorization and transmission - Limitations. 1. Effective August 1, 2013, a drug prior authorization request must be accessible to a health care provider with the provider's electronic prescribing software system and must be accepted electronically, through a secure electronic transmission, by the payer, by the insurance company, or by the pharmacy benefit manager responsible for implementing or adjudicating orfor implementing and adjudicating the authorization or denial ofthe prior authorization request. For purposes ofthis section, afacsimile is not an electronictransmission. 2. Effective August 1, 2013, electronic transmission devices used to communicate a prescription to a pharmacist may not use any means or permit any other person to use any means, including advertising, commercial messaging, and popup advertisements, to influence or attempt to influence through economic incentives the prescribing decision of a prescribing practitioner at the point of care. Such means may not be triggered by or be in specific response to the input, selection, or act of a prescribing practitioner or the prescribing practitioner's staff in prescribing a certain pharmaceutical or directing a patient to a certain pharmacy. Any electronic communication sentto the prescriber, including advertising, commercial messaging, or popup advertisements must be consistent with the product label, supported by scientific evidence, and meetthe federal food and drug administration requirements for advertising pharmaceutical products. 3. Electronic prescribing software may show information regarding a payer's formulary if the software is not designed to preclude or make more difficultthe act ofa prescribing practitioner or patient selecting any particular pharmacy or pharmaceutical.
23-01-39. Immunization program - Providerchoice - Purchasing. 1. As used in this section: a. "Department" means the state department of health. b. "North Dakota immunization advisory committee" means the group of private health care providers, local public health units, department staff, and other applicable individuals which makes immunization and vaccine selection recommendations to the North Dakota immunization program. c. "North Dakota immunization program" means the program administered by the departmentto provide vaccinations to North Dakota children consistentwith state and federal law. d. "Program-eligible child" means any child, who is under nineteen years of age, whose custodial parent or legal guardian resides in this state. e. "Vaccine" means any vaccine recommended by the federal advisory committee on immunization practices ofthe centersfordisease control and prevention.

Page No. 14f. "Vaccines for children program" is a federally funded program that provides vaccines at no cost to eligible children pursuant to section 1928 of the Social SecurityAct [42 U.S.C. 1396s]. 2. As part ofthe North Dakota immunization program: a. The department shall implement a provider choice system as part of the state's implementation ofthe vaccines for children program. This provider choice system must provide a health care provider participating in the state's vaccines for children program or in any other immunization program for children, adolescents, or adults which is administered through the state using federal or state funds, may select any licensed vaccine, including combination vaccines, and any dosage forms that have in effect a recommendation from the federal advisory committee on immunization practices. This subsection does not apply in the event of a disaster, public health emergency, terrorist attack, hostile military or paramilitary action, or extraordinary lawenforcementemergency. b. The department shall establish a program through which the department purchasesvaccines through the federal vaccine purchasing contract. (1) The department shall supply public health units with the purchased vaccines. A public health unit that receives vaccines under this subdivision shall administerthevaccines to program-eligible children. (2) A public health unit that receives vaccines under this purchasing program may not bill an insurer for the cost of the vaccine but may charge an administration fee. (3) The department shall fund this purchasing program through participation in the vaccines for children program, the federal section 317 vaccine program, and state funds appropriated for this purpose. If it appears there will be inadequate funds to fund this purchasing program, the department shall petition the emergency commission for atransferfrom the state contingency fund. The emergency commission may grant the transfer request, or so much thereofas may be necessary, to fund this purchasing program.

Page No. 15

### Chapter 33-15-01 33-15-02 33-15-03 33-15-04 33-15-05 33-15-06 33-15-07 33-15-08
33-15-09
33-15-10 33-15-11 33-15-12 33-15-13 33-15-14
33-15-15 33-15-16 33-15-17 33-15-18 33-15-19 33-15-20 33-15-21 33-15-22
33-15-23 33-15-24 33-15-25

Section 33-15-01-01 33-15-01-02 33-15-01-03 33-15-01-04 33-15-01-05 33-15-01-06 33-15-01-07 33-15-01-08 33-15-01-09 33-15-01-10 

### ARTICLE 33-15
AIR POLLUTION CONTROL

General Provisions AmbientAir Quality Standards Restriction of Emission ofVisible Air Contaminants Open Burning Restrictions Emissions of Particulate Matter Restricted Emissions ofSulfur Compounds Restricted Control ofOrganic Compounds Emissions Control of Air Pollution From Vehicles and Other Internal Combustion Engines Emission of Certain Settleable Acids and Alkaline Substances Restricted [Repealed] Control of Pesticides Prevention ofAir Pollution Emergency Episodes Standards ofPerformance for New Stationary Sources Emission Standards for Hazardous Air Pollutants Designated Air Contaminant Sources, Permit to Construct, Minor Source Permitto Operate, Title V Permitto Operate Prevention ofSignificant Deterioration ofAir Quality Restriction ofOdorousAir Contaminants Restriction of Fugitive Emissions Stack Heights Visibility Protection Control ofEmissions From Oil and GasWell Production Facilities Acid Rain Program Emissions Standards for Hazardous Air Pollutants for Source Categories Fees Standards for Lead-Based PaintActivities Regional Haze Requirements


### CHAPTER 33-15-01 GENERAL PROVISIONS

Purpose Scope Authority Definitions Abbreviations Entry Onto Premises

- Authority Variances Circumvention Severability Land Use Plans and Zoning Regulations


### 1 4/2011

### 33-15-01-11 33-15-01-12 33-15-01-13
33-15-01-14 33-15-01-15 33-15-01-16 33-15-01-17 33-15-01-18 [Reserved] Measurementof Emissions ofAir Contaminants Shutdown and Malfunction of an Installation

- Requirement for Notification Time Schedule for Compliance Prohibition ofAir Pollution Confidentiality of Records Enforcement Compliance Certifications

. 33-15-01-01. Purpose. 

### It is the purpose ofthese airquality standards and emission regulations to state such requirements as shall be required to achieve and maintainthe bestairquality possible, consistentwith the bestavailablecontrol technology, to protecthuman health, welfare, and propertyto prevent injuryto plant and animal life, to promote the economic and social development ofthis state, to fosterthe comfort and convenience forthe people, and to facilitate the enjoyment ofthe natural attractions ofthis state.
General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-01.1
33-15-01-02. Scope. 

### These airquality standards and emission regulations applyto any source oremission existing partially orwhollywithin North Dakota.
General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-03. Authority. 

### The North Dakota state department ofhealth has been authorized to provide and administerthis article underthe provisionsofNorth Dakota Century Code chapter 23-25. History: 

### Amended effective September 1, 1997. General Authority: 

### NDCC 23-25-02 Law Implemented: 

### NDCC 23-25-02
33-15-01-04. Definitions. 

### As used in this article, except as otherwise specifically provided orwhen the context indicates otherwise, the following words shall have the meanings ascribed to them in this section:
1. "Act" means North Dakota Century Code chapter 23-25.
2. "Aircontaminant" meansany solid, liquid, gas, orodoroussubstance or any combination thereofemitted to the ambient air.
3. "Airpollution" meansthe presence in the outdooratmosphere ofone or more air contaminants in such quantities and duration as is or may be injuriousto human health, welfare, orproperty or animal or plant life, or which unreasonably interfereswith the enjoyment oflife or property.

4/2011 2

### 4. "Ambient air" means the surrounding outside air.
5. "ASME" means the American society ofmechanical engineers.
6. "Coal conversion facility" means any ofthe following:

a. An electrical generating plant, and all additions thereto, which processes or converts coal from its natural form into electrical power and which has at least one single electrical energy generation unitwith a generator nameplate capacity oftwenty-five megawatts or more. b. A plant, and all additionsthereto, which processesorconverts coal from its natural form into aform substantially different in chemical orphysical properties, including coal gasification, coal liquefaction, andthe manufactureoffertilizerand otherproductsandwhich uses or is designed to use overfive hundred thousand tons ofcoal per year.

c. A coal beneficiation plant, and all additionsthereto, which improve the physical, environmental, orcombustion qualitiesofcoal and are built in conjunction with afacility defined in subdivision aor b.
7. "Control equipment" means any device or contrivance which prevents or reduces emissions.
8. "Department" means the North Dakota state department ofhealth.
9. "Emission" means a release ofair contaminants into the ambient air.
10. "Excess emissions" means the release of an air contaminant into the ambient air in excess of an applicable emission limit or emission standard specified in this article or a permit issued pursuant to this article.
11. "Existing" meansequipment, machines, devices, articles, contrivances, or installations which are in being on or before July 1, 1970, unless specifically designated within this article; except that any existing equipment, machine, device, contrivance, or installation which is altered, repaired, or rebuilt after July 1, 1970, must be reclassified as "new" ifsuch alteration, rebuilding, or repair results in the emission of an additional orgreateramount ofair contaminants.
12. "Federally enforceable" means all limitations and conditions which are enforceable by the administrator of the United States environmental protection agency, including those requirements developed pursuant to title 40, Code of Federal Regulations, parts 60 and 61, requirements within any applicable state implementation plan, any permit requirements established pursuant to title 40, Code of 

### 3 4/2011

### Federal Regulations, 52.21 or under regulations approved pursuant to title 40, Code of Federal Regulations, part 51, subpart I, including operating permits issued under a United States environmental protection agency-approved program that is incorporated into the state implementation plan and expressly requires adherence to any permit issued under such program. 13. "Fuel burning equipment" means any furnace, boiler apparatus, stack, or appurtenances thereto used in the process ofburning fuel or other combustible materialforthe primarypurposeofproducing heatorpower by indirect heat transfer.
14. "Fugitive emissions" means solid airborne particulate matter, fumes, gases, mist, smoke, odorousmatter, vapors, oranycombinationthereof generated incidentalto an operation process procedureoremittedfrom any source otherthan through awell-defined stack or chimney.
15. "Garbage" means putrescible animal and vegetable wastes resulting from the handling, preparation, cooking, and consumption of food, including wastes from markets, storage facilities, handling, and sale of produce and otherfood products.
16. "Hazardous waste" has the same meaning as given by chapter 33-24-02.
17. "Heat input" means the aggregate heat content of all fuels whose products ofcombustion pass through astack orstacks. The heat input value to be used shall be the equipment manufacturer's or designer's guaranteed maximum input, whichever is greater.
18. "Incinerator" means any article, machine, equipment, device, contrivance, structure, or part ofastructure used forthe destruction of garbage, rubbish, orotherwastes by burning orto processsalvageable material by burning.
19. "Industrial waste" means solid waste that is not a hazardous waste regulated under North Dakota Century Code chapter 23-20.3, generated from the combustion or gasification of municipal waste and from industrial and manufacturing processes. The term does not include municipal waste orspecial waste.
20. "lnhalable particulate matter" means particulate matter with an aerodynamicdiameterlessthan orequalto a nominalten micrometers.
21. "Installation" means any property, real or personal, including, but not limited to, processing equipment, manufacturing equipment, fuel burning equipment, incinerators, or any other equipment, or construction, capable ofcreating or causing emissions.

4/2011 4

### 22. "Multiple chamber incinerator" meansanyarticle, machine, equipment, contrivance, structure, or part ofa structure used to burn combustible refuse, consisting oftwo or more refractory lined combustion furnaces in seriesphysicallyseparated by refractorywalls, interconnected bygas passage portsorductsand employing adequate parameters necessary for maximum combustion ofthe material to be burned.
23. "Municipal waste" means solid waste that includes garbage, refuse, and trash generated by households, motels, hotels, and recreation facilities, by publicand privatefacilities, and bycommercial, wholesale, and private and retail businesses. The term does not include special waste or industrial waste.
24. "New" means equipment, machines, devices, articles, contrivances, or installations builtorinstalled on orafterJuly 1, 1970, unlessspecifically designated within this article, and installations existing at said stated time which are later altered, repaired, or rebuilt and result in the emission ofan additional or greateramountofair contaminants.
25. "Opacity" means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background.
26. "Open burning" means the burning of any matter in such a manner that the products ofcombustion resulting from the burning are emitted directly intothe ambientairwithoutpassingthrough an adequatestack, duct, or chimney.
27. "Particulate matter" means any airborne finely divided solid or liquid material with an aerodynamic diameter smaller than one hundred micrometers.
28. "Particulate matter emissions" means all finely divided solid or liquid material, otherthan uncombined water, emitted to the ambient air.
29. "Person" means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, agency, political subdivision ofthis state, anyotherstate or political subdivision or agency thereof and any legal successor, representative agent, or agency ofthe foregoing.
30. "Pesticide" includes:

a. Any agent, substance, or mixture of substances intended to prevent, destroy, control, ormitigate any insect, rodent, nematode, predatory animal, snail, slug, bacterium, weed, and any other form of plant or animal life, fungus, or virus, that may infect or be detrimental to persons, vegetation, crops, animals, structures, or households or be present in any environment or which the
5 4/2011

### department maydeclareto be apest, exceptthose bacteria, fungi, protozoa, orviruses on or in living man orother animals;
b. Any agent, substance, or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant; and

c. Any other similar substance so designated by the department, including herbicides, insecticides, fungicides, nematocides, molluscacides, rodenticides, lampreycides, plant regulators, gametocides, post-harvestdecay preventatives, and antioxidants.
31. "Petroleum refinery" means an installationthat is engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants, or other products through distillation of petroleum, or through the redistillation, cracking, or reforming ofunfinished petroleumderivatives.
32. "PM2

_ 5" 

### means particulate matter with an aerodynamic diameter less than or equal to a nominal two and five-tenths micrometers.
33. "PM 10" 

### means particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers. · 34. "PM 10 

### emissions" means finely divided solid or liquid material with an aerodynamicdiameter lessthan orequalto a nominalten micrometers emitted to the ambient air.
35. "Pipeline quality natural gas" means natural gas that contains two grains, orless, ofsulfurperone hundredstandard cubicfeet [2.83cubic meters].
36. "Premises" meansanyproperty, pieceofland or real estate, orbuilding.
37. "Processweight" meansthetotalweightofall materials introduced into any specific process which may cause emissions. Solid fuels charged will be considered as partofthe processweight, butliquid and gaseous fuels and combustion airwill not.
38. "Processweight rate" means the rate established as follows:

a. Forcontinuousorlongrunsteadystateoperations,thetotal process weightforthe entire period ofcontinuous operation orfor atypical portion thereof, divided by the number of hours ofsuch period or portion thereof.
b. For cyclical or batch operations, the total process weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period. If the nature of any process or operation or the design of any equipment is such as to permit more than one 4/2011 6

### interpretation ofthis definition, the interpretation that results in the minimum value for allowable emission shall apply.
39. "Radioactivewaste" means solid waste containing radioactive material and subjectto the requirements ofarticle 33-10.
40. "Refuse" means any municipal waste, trade waste, rubbish, or garbage, exclusive of industrial waste, special waste, radioactive waste, hazardous waste, and infectiouswaste.
41. "Rubbish" means nonputrescible solid wastes consisting of both combustible and noncombustible wastes. Combustible rubbish includes paper, rags, cartons, wood, furniture, rubber, plastics, yard trimmings, leaves, and similar materials. Noncombustible rubbish includes glass, crockery, cans, dust, metal furniture, and like materials which will not burn at ordinary incineratortemperatures (one thousand six hundred to one thousand eight hundred degrees Fahrenheit [1144 degrees Kelvin to 1255 degrees Kelvin]).
42. "Salvage operation" means any operation conducted in whole orin part forthe salvaging or reclaiming ofany product or material.
43. "Smoke" means small gasborne particles resulting from incomplete combustion, consisting predominantly, but not exclusively, of carbon, ash, and othercombustible material, thatform avisible plume in the air.
44. "Source" means any property, real or personal, or person contributing to air pollution.
45. "Source operation" meansthe lastoperation preceding emissionwhich operation:

a. Results in the separation ofthe air contaminant from the process materials or in the conversion of the process materials into air contaminants, as in the case ofcombustion fuel; and
b. Is not an air pollution abatement operation.
46. "Special waste" means solid waste that is not a hazardous waste regulated under North Dakota Century Code chapter 23-20.3 and includes waste generated from energy conversion facilities; waste from crude oil and natural gas exploration and production; waste from mineral and or mining, beneficiation, and extraction; and waste generated by surface coal mining operations. The term does not include municipal waste or industrial waste.
47. "Stackorchimney" meansanyflue, conduit, orductarrangedtoconduct emissions.



### 7 4/2011

### 48. "Standard conditions" means a dry gas temperature of sixty-eight degrees Fahrenheit [293 degrees Kelvin] and a gas pressure of fourteen and seven-tenths pounds per square inch absolute [101.3 kilopascals].
49. "Submerged fill pipe" means any fill pipe the discharge opening of which is entirely submerged when the liquid level is six inches [15.24 centimeters] above the bottom ofthe tank; or when applied to a tank which is loadedfromtheside, meansanyfill pipethe dischargeopening ofwhich is entirelysubmergedwhen the liquid level is one and one-half times the fill pipe diameter in inches [centimeters] above the bottom of the tank.
50. "Trade waste" means solid, liquid, or gaseous waste material resulting from construction or the conduct of any business, trade, or industry, or any demolition operation, including wood, wood containing preservatives, plastics, cartons, grease, oil, chemicals, and cinders.
51. "Trash" means refuse commonly generated by food warehouses, wholesalers, and retailers which is comprised only of nonrecyclable paper, paper products, cartons, cardboard, wood, wood scraps, and floor sweepings and other similar materials. Trash may not contain more than five percent by volume of each of the following: plastics, animal and vegetable materials, or rubber and rubber scraps. Trash must be free of grease, oil, pesticides, yard waste, scrap tires, infectiouswaste, and similar substances.
52. "Volatile organic compounds" means the definition ofvolatile organic compounds in 40 Code ofFederal Regulations 51.1OO(s) as itexistson July 2, 2010, which is incorporated by reference.
53. "Waste classification" means the seven classifications of waste as defined by the incinerator institute ofAmerica and American society of mechanical engineers. History: 

### Amended effective October 1, 1987; January 1, 1989; June 1, 1990; June 1, 1992; March 1, 1994; December 1, 1994; August 1, 1995; January 1, 1996; September 1, 1997; September 1, 1998; June 1, 2001; March 1, 2003; January 1, 2007; April 1, 2009; April 1, 2011. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-05. Abbreviations. 

### The abbreviations used in this article have the following meanings:

A

- ampere A.S.T.M.

- American Society for Testing and Materials Btu

- British thermal unit
4/2011 

### 8

# oc

- degree Celsius (centigrade) cal 

## - calorie CdS



### - cadmium sulfide cfm



### - cubic feet per minute CFR 

## - code offederal regulations
cu ft


### - cubic feet 

# co

- carbon monoxide C02 

### - carbon dioxide dcf



### - dry cubic feet dcm



### - dry cubic meter dscf


### - dry cubicfeet at standard conditions dscm 

## - dry cubic meter at standard conditions eq 

### - equivalents OF



### - degree Fahrenheit ft



### - feet g 

### - gram gal



### - gallon g eq 

### - gram equivalents gr 

### - grain hr



### - hour HCI



### - hydrochloric acid Hg



### - mercury H20


### - water H2S



### - hydrogen sulfide H2S04 

# - sulfuric acid Hz



### - hertz in. inch joule OK



### - degree Kelvin k



### - 1,000 kg



### - kilogram I



### - liter lpm



### - liter per minute lb



### - pound
m 

## - meter m3



### - cubic meter



### 9 4/2011

### meq min mg Mg 

### ml
mm mol 

### mol.wt. mV 

### N2 N 

### ng nm 

### NO 

### N02 

### NOX 

### 02 Pa 

### PM PM2.5
PM1o ppb ppm psia psig 

## OR

s-sec scf scfh
scm scmh 

## so2 

## so3 

## sox sq ft



### 4/2011 - milliequivalent minute

- milligram

- 1

## o-3 

### gram

- megagram- 106 

### gram

- milliliter

- 1

## o-3 

### liter

- millimeter

- 1

## o-3 

### meter

- mole

- molecularweight

- millivolt

- nitrogen

- newton

- nanogram - 

### 1

## o-9 

### gram

- nanometer

- 

### 1

## o-9 

### meter

- nitric oxide

- nitrogen dioxide

- nitrogen oxides

- oxygen

- pascal

- particulate matter

- particulate matterwith an aerodynamic diameter lessthan orequal to a nominal 

### 2.5 micrometers

- particulate matterwith an aerodynamic**diameter~** 

### 10 micrometers

- parts per billion

- parts per million pounds per square inch absolute pounds persquare inch gauge

- degree Rankine

- second

- cubic feet at standard conditions

- cubic feet per hour at standard conditions

- cubic meters at standard conditions

- cubic meters per hour at standard conditions

- sulfur dioxide

- sulfur trioxide

- sulfur oxides

- square feet

10

### std

- at standard conditions TSP

- total suspended particulate IJg

- microgram - 1 

## o-6 

### gram V - 

### volt W

- watt 

### 0

- ohm History: 

### Amended effective January 1, 1989; January 1, 2007; April1, 2009. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-06. Entry onto premises - Authority. 

### Entry onto premises and onsite inspection shall be made pursuant to North Dakota Century Code section 23-25-05.
General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-05
33-15-01-07. Variances.


### 1. Where upon written application ofthe responsible person or persons the department finds that by reason of exceptional circumstances strict conformity with any provisions ofthis article would cause undue hardship, would be unreasonable, impractical, or not feasible under the circumstances, the department may permit a variance from this article upon such conditions and within such time limitations as it may prescribe for prevention, control, or abatement of air pollution in harmonywith the intent ofthe state and any applicable federal laws.
2. No variance may permit or authorize the creation or continuation ofa public nuisance, or adangerto public health or safety. History: 

### Amended effective June 1, 1990. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-08. Circumvention. 

### No person shall cause or permit the installation or use of any device or any means which conceals or dilutes an emission ofaircontaminantwhich would otherwise violate this article. History: 

### Amended effective June 1, 1990. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-09. Severability. 

### Ifany provision ofthis article orthe application thereofto any person or circumstances is held to be invalid, such invalidity shall not affect other provisions or application ofany other part ofthis article which can 11 4/2011

### be given effect without the invalid provision or application, and to this end the provisions ofthis article and the various applications thereof are declared to be severable.


### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-01-10. Land use plans and zoning regulations.
1. Planning agency land use plans.

a. The department will provide to planning agencies, for use in preparing land use plans, information concerning: (1) Air quality. (2) Air pollutant emissions. (3) Air pollutant meteorology. (4) Air quality goals. (5) Air pollution effects.
b. The department will review all land use plans and prepare recommendations for consideration in the plan adoption process.
2. 

### Zoning agency regulations.

a. The departmentwill provide to zoning control agencies, for use in preparing regulations, information concerning: (1) 

### Air quality. (2) 

### Air pollutant emissions. (3) 

### Air pollution meteorology. 

## (4) Air quality goals. (5) 

### Air pollution effects.
b. The department will review all zoning regulations and prepare recommendations for consideration in the regulation adoption process. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03



### 4/2011 12

### 33-15-01-11. [Reserved]
33-15-01-12. Measurementofemissions ofaircontaminants.
1. Sampling and testing. The department may reasonably require any person responsible for emission of air contaminants to make or have made tests, at a reasonable time or interval, to determine the emission of air contaminants from any source, for the purpose of determining whether the person is in violation of any standard under this article or to satisfy other requirements under the North Dakota Century Code chapter 23-25. All tests shall be made and the results calculated in accordance with test procedures approved or specified by the department. All tests shall be conducted by reputable, qualified personnel. The department shall be given a copy ofthe test results in writing and signed by the person responsible for the tests.
The owner or operator of a source shall notify the department using forms supplied by the department, or its equivalent, at least thirty calendardays in advance ofanytests ofemissions ofaircontaminants required by the department. Advanced notification for all othertesting will be consistent with the requirements ofthe appropriate regulations but in no case will be less than thirty calendar days. Ifthe owner or operator of a source is unable to conduct the performance test on the scheduled date, the owner or operator ofa source shall notify the department as soon as practicable when conditions warrant and shall coordinate a newtest date with the department.
Failure to give the proper notification may preventthe departmentfrom observing the test. If the department is unable to observe the test because ofimproper notification, the test results may be rejected.
2. The department may make tests. The department may conducttests ofemissions ofaircontaminants from any source. Upon request ofthe department, the person responsible for the source to be tested shall provide necessary holes in stacks or ducts and such other safe and proper sampling and testing facilities, exclusive of instruments and sensing devices as may be necessary for proper determination ofthe emission ofair contaminants. History: Amended effective June 1, 2001. General Authority: NDCC 23-25-03, 23-25-04 Law Implemented: NDCC 23-25-03, 23-25-04
33-15-01-13. Shutdown and malfunction of an installation

- Requirement for notification.
1. Maintenance shutdowns. In the case of shutdown of air pollution control equipment for necessary scheduled maintenance, the intentto shutdown such equipmentshall be reported to the department at least
13 4/2011

### twenty-four hours prior to the planned shutdown provided that the air contaminating source will be operated while the control equipment is not in service. Such prior notice shall include the following:

a. Identificationofthe specificfacilityto betaken outofserviceaswell as its location and permit number.
b. The expected length oftimethatthe airpollution controlequipment will be out ofservice.

c. The nature and estimated quantity of emissions of air pollutants likelyto be emitted during the shutdown period.
d. Measures such as the use ofoff-shift laborand equipmentthatwill be taken to minimize the length ofthe shutdown period.

e. The reasonsthatitwould be impossibleorimpracticalto shutdown the source operation during the maintenance period.
f. Nothing in this subsection shall in any manner be construed as authorizing or legalizingtheemission ofaircontaminants in excess ofthe rate allowed bythis articleorapermit issued pursuantto this article.


### 2. Malfunctions.



### a. When amalfunction in any installation occursthatcan be expected to last longerthan twenty-four hours and cause the emission ofair contaminants inviolation ofthisarticleorotherapplicable rules and regulations, the person responsibleforsuch installation shall notify the department of such malfunction as soon as possible during normal working hours. The notification must contain a statement giving all pertinent facts, including the estimated duration of the breakdown. The department shall be notified when the condition causing the malfunction has been corrected.
b. Immediate notification to the department is required for any malfunction that would threaten health or welfare, or pose an imminent danger. During normal working hours the department can be contacted at 701-328-5188. After hours the department can be contacted through the twenty-four-hour state radio emergency number 1-800-472-2121. If calling from out of state, the twenty-four-hour number is 701-328-9921.

c. Unavoidable malfunction. The owner or operator of a source who believes any excess emissions resulted from an unavoidable malfunction shall submit awritten report to the departmentwhich includes evidence that:
4/2011 14

### (1) 

### The excess em1ss1ons were caused by a sudden, unavoidable breakdown of technology that was beyond the reasonable control ofthe owner oroperator. (2) Theexcessemissionscould not have been avoided by better operation and maintenance, did not stem from an activity or eventthat could have been foreseen and avoided orplanned for. (3) To the extent practicable, the source maintained and operated the air pollution control equipment and process equipment in a manner consistent with good practice for minimizing emissions, including minimizing any bypass emissions. (4) Any necessary repairs were made as quickly as practicable, using off-shift laborand overtime as needed and possible. (5) All practicable steps were taken to minimize the potential impact ofthe excess emissions on ambient airquality. (6) The excess emissions are not part of a recurring pattern that may have been caused by inadequate operation or maintenance or inadequate design of the malfunctioning equipment.
The report shall be submitted within thirty days ofthe end ofthe calendar quarter in which the malfunction occurred orwithin thirty days ofawritten request bythe department, whichever is sooner. The burden of proof is on the owner or operator ofthe source to provide sufficient information to demonstrate that an unavoidable equipment malfunction occurred. The department may elect not to pursue enforcement action after considering whether excess emissions resulted from an unavoidable equipment malfunction. The department will evaluate, on a case-by-case basis, the information submitted by the owner or operator to determine whetherto pursue enforcement action.
3. Continuous emission monitoring system failures. When a failure of a continuous emission monitoring system occurs, an alternative method for measuring or estimating emissions must be undertaken as soon as possible. The owner or operator ofa source that uses an alternative method shall have the burden of demonstrating that the



### 15 4/2011

### method is accurate. Timely repair ofthe emission monitoring system must be made. History: 

### Amended effective October 1, 1987; January 1, 1989; June 1, 1992; September 1, 1997; January 1, 2007; April 1, 2009. General Authority: 

### NDCC 23-25-03, 23-25-04 Law Implemented: 

### NDCC 23-25-03, 23-25-04
33-15-01-14. Time schedule for compliance. 

### Except as otherwise specified, compliance with the provisions ofthis article shall be according to the following time schedule:
1. Newinstallations. 

### Every new installation shall comply as ofgoing into continuous routine operation for its intended purpose. 2. Existing installations. 

### Every existing installation shall be in compliance as ofJuly 1, 1970, unlessthe owneror person responsible for the operation of the installation shall have submitted to the department in a form and manner satisfactory to it, a program and schedule for achieving compliance, such program and schedule to contain adate on or before which full compliance will be attained, and such other information as the department may require. Ifapproved by the department, such date will be the date on which the person shall comply. Thedepartmentmay require persons submitting such program to submit subsequent periodic reports on progress in achieving compliance.
General Authority: 

### NDCC 23-25-03, 23-25-04.1 Law Implemented: 

### NDCC 23-25-03, 23-25-04.1
33-15-01-15. Prohibition ofair pollution.


### 1. No person shall permit or cause air pollution, as defined in section 33-15-01-04.
2. Nothing in any other part of this article concerning emission of air contaminants or any other regulation relating to air pollution shall in any manner be construed as authorizing or legalizing the creation or maintenance ofair pollution. History: 

### Amended effective June 1, 1990; September 1, 1997; June 1, 2001. General Authority: 

### NDCC 23-25-03, 23-25-04.1 Law Implemented: 

### NDCC 23-25-03, 23-25-04.1
33-15-01-16. Confidentiality of records.
1. Public inspection. 

### Any record, report, or information obtained or submitted pursuant to this article will be available to the public for inspection and copying during normal working hours unless the
4/2011 16

### department certifies that the information is confidential. Anyone requesting department assistance in collecting, copying, certifying, or mailing public information must tender, in advance, the reasonable cost ofthose services.
2. Information submitted as trade secrets. The department may certify records, reports, or information, or particular part thereof, other than emission data, as confidential upon a showing that the information would, if made public, divulge methods or processes entitled to protection as trade secrets. Any person submitting trade secret information must present the information to the department in a sealed envelope marked "CONFIDENTIAL". Each page of any document claimed confidential must be clearly marked with the word "CONFIDENTIAL". The submission must contain two parts:

a. The material claimed to contain trade secret information; and
b. A request for confidential treatment including: (1) All information forwhich no claim is being made; (2) An affidavit stating how and why the information fulfills the conditions ofconfidentiality underthis subsection; and (3) An indexto and summary ofthe information submitted which is suitable for release to the public.
3. Accepted tradesecretclaims. All informationwhich meetsthe testof subsection 2 must be marked by the departmentas "ACCEPTED" and protected as confidential information.
4. Rejected trade secret claims. If the department determines that information submitted pursuant to subsection 2 does not meet the criteria of that subsection for confidential treatment, the department shall promptly notify the person submitting the information of that determination. The department shall in that event give that person at least twenty days in which to:

a. Acceptthe determination ofthe department;
b. Requestthat the information be returned to the person;

c. Further justify the contention that the information deserves protection as a trade secret; or d. Further limit the scope of information for which a claim of confidentiality is made.



### 17 4/2011

### If the person who submitted the information fails within the time period allowed by the department to demonstrate satisfactorily to the department that the information in the form presented qualifies for confidential treatment, the departmentshall promptly notifythat person ofthat determination. Ifthe person submitting the information did not request that it be returned, the department shall mark the information "REJECTED" and treat it as public information. The department's action on a reconsideration constitutesfinal agency actionfor purposes of judicial review. Appeal of this action must be to an appropriate district court.
5. Appeal of nondisclosure claims. Any person who identifies and tenders the reasonable cost of collecting, copying, certifying, and mailing particular information held by the department under subsection 2 mayfilewith the departmentapetition for reconsideration stating how and why the public's interest would be better served by the release of the requested information than by its retention as confidential by the department. The department shall then reconsider the confidential status ofthe information. The department action on a petition for reconsideration constitutesfinal agency action for purposes ofjudicial review. Appeal of the department's action must be to an appropriate district court.
6. Retention of confidential information. All information which is accepted by the department as confidential must be stored in locked filing cabinets. Only those personnel of the department specifically designated by the department shall have access to the information contained therein. The department may not designate any person to have access to confidential information unless that person requires such access in order to carry out that person's responsibilities and duties. No person may disclose any confidential information except in accordancewiththe provisions ofthis section. No copies may be made except as strictly necessaryfor internal department use oras specified in subsection 8.
7. Maintenance of log. Persons designated by the department to maintain confidential files as herein provided shall maintain a log showing the personswho have had access to the confidential files and the date ofsuch access. 8. Transmittals of confidential information. As necessary, confidential information acquired by the department under the provisions of the act, or this article, may be transmitted to such federal, state, or local agencies, when necessary for purposes of administration of any federal, state, or local air pollution control laws, which make an adequate showing of need to the department, provided that such transmittal is made under a continuing assurance ofconfidentiality.

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### 9. Relationship to issuance of permits. 

### The department may not process any application forapermitto construct oroperate pursuantto chapter 33-15-14 or 33-15-15 until final agency action on confidential trade secret claims has been completed. History: 

### Effective October 1, 1987. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03, 23-25-06
33-15-01-17. Enforcement.


### 1. Enforcement action will be consistent with procedures as approved by the United States environmental protection agency. 2. Notwithstandinganyotherprovision inthisarticle, anycredibleevidence may be used for the purpose of establishing whether a person has violated or is in violation ofthis article.

a. Informationfrom the use ofthefollowing methods is presumptively credible evidence ofwhetheraviolation has occurred at asource: (1) Acomplianceassurancemonitoring protocolapprovedforthe source pursuantto subsection 10 ofsection 33-15-14-06. (2) A monitoring method approved for the source pursuant to paragraph 3 of subdivision a of subsection 5 of section 33-15-14-06 and incorporated in a federally enforceable title V permit to operate. (3) Compliance test methods specified in this article.
b. The following testing, monitoring, and information-gathering methods are presumptively credible testing, monitoring, or information-gathering methods: (1) Any federally enforceable monitoring or testing methods, including those under title 40, Code of Federal Regulations, parts 50, 51, 60, 61, 63, and 75. (2) Other testing, monitoring, or information-gathering methods thatproduce information comparableto thatproduced by any method in paragraph 1or in subdivision a. 3. a. No person may knowingly make afalse statement, representation, or certification in any application, record, report, plan, or other documentfiled or required underthis article.

19 4/2011

### b. No person mayknowinglyfalsify, tamperwith, orprovide inaccurate information regarding a monitoring device or method required under this article. History: 

### Effective June 1, 1990; amended effective December 1, 1994; September 1, 1997; March 1, 2003. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03
33-15-01-18. Compliance certifications. 

### Notwithstanding any other provision in this article, forthe purpose ofsubmission ofcompliance certifications the owner or operator is not prohibited from using the following in addition to any specified compliance methods:
1. A compliance assurance monitoring protocol approved for the source pursuantto subsection 10 ofsection 33-15-14-06.
2. Any other monitoring method approved for the source under paragraph 3 of subdivision a of subsection 5 of section 33-15-14-06 and incorporated into afederally enforceabletitle V permitto operate. History: 

### Effective December 1, 1994; amended effective March 1, 2003. General Authority: 

### NDCC 23-25-03 Law Implemented: 

### NDCC 23-25-03

4/2011 20

### CHAPTER 33-15-02 AMBIENT AIR QUALITY STANDARDS

Scope Purpose Air Quality Guidelines Ambient Air Quality Standards Methods ofSampling and Analysis Reference Conditions Section 33-15-02-01 33-15-02-02 33-15-02-03 33-15-02-04 33-15-02-05 33-15-02-06 33-15-02-07 Concentrations of Air Contaminants in the Ambient Air Restricted


### 33-15-02-01. Scope. Theambientairqualitystandardsas presented in this chapter pertain to the ambient airwithin the boundaries ofNorth Dakota. 

### History: Amended effective October 1, 1987. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-02-02. Purpose. It is the purpose ofthese air quality standards to setforth levels ofair quality for the maintenance ofpublic health and welfare and to provide guidance to governmental and other parties interested in abating air pollution. Since the ambient air in North Dakota is generally cleaner than these standards, the standards are not a permit for the unnecessary degradation ofair quality. 

### History: Amended effective October 1, 1987. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-02-03. Airquality guidelines. In keeping with the purpose ofthese ambient air quality standards, the quality should be such that:
1. The public health will be protected including sensitive or susceptible segments ofthe population.
2. Concentrations of pollutants will not cause public nuisance or annoyance. 3. Agricultural crops, animals, forest, and otherplant lifewill be protected.
4. Visibility will be protected.
5. Metals or other materials will be protected from abnormal corrosion or damage.
6. Fabrics will not be soiled, deteriorated, ortheir colors affected.

1 4/2011

### 7. Natural scenery will not be obscured. 

### History: Amended effective October 1, 1987. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-02-04. Ambientairquality standards.
1. 

### Particulates and gases. The standards of ambient air quality listed in table 1 and table 2 define the limits of air contamination by particulates and gases. Any air contaminant which exceeds these limits is hereby declared to be unacceptable and requires air pollution control measures. The stated limits include normal background levels ofparticulates and gases.
2. 

### Radioactive substances. The ambient air shall not contain any radioactive substances exceeding the concentrations specified in article 33-10.
3. 

### Other air contaminants. The ambient air shall not contain air contaminants in concentrationsthatwould be injuriousto human health or well-being or unreasonably interfere with the enjoyment ofproperty orthatwould injure plantoranimal life. The department may establish, on a case-by-case basis, specific limits of concentration for these contaminants. 

### History: AmendedeffectiveOctober1, 1987;January 1 ,1989; September 1, 1998; April 1, 2011. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-02-05. Methods ofsampling and analysis. Aircontaminants listed undertable 1shall be measured by the method or methods listed in title 40, Code of Federal Regulations, parts 50 and 53. Hydrogen sulfide sampling equipment and methods must be approved by the department. Hydrogen sulfide analyzers must be designed for use as ambient air quality monitors and must be capable of meeting performance specifications as determined by the department.
The sampling and analytical procedures employed and the number, duration, and location of samples to be taken to measure ambient levels of air contaminants shall be consistent with obtaining results which are precise, accurate, and representative ofthe conditions being evaluated. 

### History: Amended effective October 1, 1987; December 1, 1994. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-02-06. Reference conditions. The standards ofambient airquality listed in table 1 are corrected to a reference temperature oftwenty-five degrees
4/2011 2

### Celsius [298 degrees Kelvin] and a reference pressure of seven hundred sixty millimeters ofmercury [101.3 kilopascals].


### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03


### 33-15-02-07. Concentrations of air contaminants in the ambient air restricted.
1. No person may cause or permit the emission of contaminants to the ambient airfrom anysource in such a mannerand amountthat causes orcontributes to aviolation in the ambientairofthose standards stated in section 33-15-02-04.
2. Nothing in anyother partorsection ofthis article may in any mannerbe construed as authorizing or legalizing the emission ofair contaminants in such manneras prohibited in subsection 1. 

### History: Amended effective October 1, 1987; September 1, 1998; April 1, 2011. 

### General Authority: NDCC 23-25-03 

### Law Implemented: NDCC 23-25-03



### 3 4/2011

### Table 1. AMBIENT AIR QUALITY STANDARDS
Standards Air Contaminants (Maximum Permissible Concentrations) lnhalable 150 micrograms per cubic meter, 24-hour average Particulates concentration. The standard is attained when the PM1o expected number ofdays per calendaryearwith a 24-hour average concentration above 150 micrograms per cubic meter, as determined in accordancewith 40 CFR 50, Appendix K, is equal to or less than one. PM 2.5 

### 15.0 micrograms per cubic meter annual arithmetic mean concentration. The standard is metwhen the annual arithmetic mean concentration, as determined in accordancewith 40 CFR 50, Appendix N, is less than or equal to 15.0 micrograms per cubic meter. 35 micrograms per cubic meter 24-hour average concentration. The standard is metwhen the 98th percentile 24-hour concentration, as determined in accordancewith 40 CFR 50, Appendix N, is less than or equal to 35 micrograms per cubic meter. Sulfur 0.075 parts per million (196 micrograms per cubic meter) Dioxide 1-hour average concentration. The standard is met when the 3-year average ofthe annual 99th percentile ofthe daily maximum 1-houraverage concentration is less than or equal to 0.075 parts per million, as determined in accordancewith 40 CFR 50, Appendix

### T. 0.5 parts per million (1309 micrograms per cubic meterof air) maximum 3-hour concentration, notto be exceeded more than once per calendaryear. Hydrogen 10.0 parts per million (14 milligrams per cubic meter ofair), Sulfide maximum instantaneous (ceiling) concentration notto be exceeded 0.20 parts per million (280 micrograms per cubic meter of air), maximum 1-houraverage concentration notto be exceeded more than once per month 0.10 parts per million (140 micrograms per cubic meter of air), maximum 24-houraverage concentration notto be exceeded more than once peryear 0.02 parts per million (28 micrograms per cubic meterofair), maximum arithmetic mean concentration averaged over three consecutive months Carbon 9 parts per million (10 milligrams percubic meter ofair), Monoxide maximum 8-hour concentration notto be exceeded more than once peryear

4/2011 4

### Ozone

Nitrogen Dioxide

Lead 35 parts per million (40 milligrams per cubic meterofair), maximum 1-hour concentration not to be exceeded more than once peryear 0.075 parts per million (147 micrograms per cubic meterof air) daily maximum 8-houraverage concentration. The standard is metwhen the three-year average ofthe annual fourth-highest daily maximum 8-houraverage concentration at an ambient air quality monitoring site is less than orequal to 0.075 ppm, as determined in accordancewith 40 CFR 50, Appendix P. 0.053 parts per million (100 micrograms per cubic meterof air), maximum annual arithmetic mean 0.100 parts per million (188 micrograms per cubic meter) 1-houraverage concentration. The standard is met when the 3-year average ofthe annual 98th percentile ofthe daily maximum 1-houraverage concentration is less than or equal to 0.100 parts per million, as determined in accordancewith 40 CFR 50, Appendix S. 0.15 micrograms per cubic meter ofair, arithmetic mean averaged overa 3-month rolling period. Thestandard is metwhen the maximum 3-month mean concentration for a 3-year period, as determined in accordance with 40 CFR 50, Appendix R, is less than orequal to 0.15 micrograms per cubic meter. 

### History: Amended effective December 1, 1994; April 1, 2009; April 1, 2011.


### Table 2. NATIONALAMBIENTAIR QUALITY STANDARDS
Air Contaminant
Sulfuroxides (sulfur dioxide) Standards (Maximum Permissible Concentrations) 0.030 parts per million (80 micrograms per cubic meter ofair) maximum annual arithmetic mean concentration, notto be exceeded in a calendar year 0.14 parts per million (365 micrograms percubic meter ofair) maximum 24-hourconcentration, notto be exceeded morethan once per calendaryear

5 4/2011

### The standards in Table 2will remain in effect until one yearafterthe effective date ofthe designationforthe one-hoursulfurdioxide standard pursuantto Section 107 of the Federal Clean Air Act except for areas designated nonattainment with respect to the standards in Table 2 and areas not meeting the requirements ofa state implementation call with respect to requirements for the national ambient air quality standards in Table 2. The standards in Table 2 will apply to those areas until that area submits, and the environmental protection agency approves, an implementation plan providing for attainment of the one-hour sulfur dioxide standard. History: 

### Amended effective September 1, 1998; April 1, 2011.

4/2011 

### 6