-- ENVIRONMENTAL HEALTH SECTION 

Gold Seal Center, 918 E. Divide Ave. 

NORTH DAKOTA	 Bismarck, ND 58501-1947 

DEPARTMENT of HEALTH	 701.328.5200 (fax) 

www.ndhealth.gov 

April 9, 2009 

Ms. Carol Rushin 

Acting Regional Administrator 

U.S. EPA, Region 8 

1595 Wynkoop Street 

Denver, CO 80202-1129 

Re: SIP Revision 

Dear Ms. Rushin: 

Accompanying this letter is a letter from Governor Hoeven to Administrator Jackson formally 

submitting revisions to the North Dakota State Implementation Plan (SIP) for the control of air 

pollution. 

The SIP revision addresses Interstate Transport relating to the 1997 8-hour ozone and PM25 

NAAQS, implementation of the current NAAQS for PM 10 • PM25 and ozone as well as revisions 

to several chapters of the North Dakota Air Pollution Control Rules that are part of the SIP. The 

specific changes are addressed in the attached summary. 

If your staff has any questions about the revisions, please have them contact Tom Bachman of 

my staff at (701 )328-5188. 

Sincerely, 

Terry L. O'Clair, P.E. 

Director 

Division of Air Quality RECEIVED 

TLO/TB:saj 

xc:	 Amy Platt, EPA, Region 8, 8P-AR 

Domenico Mastrangelo, EPA, Region 8, 8P-AR 'USEPAMS OFFICE 

Environmental Health Division of Division of Division of Division of 

Section Chief's Office Air Quality Municipal Facilities Waste Management Water Quality 

701.328.5150 701.328.5188 701.328.5211 701.328.5166 701.328.5210 

Printed on recycled paper. 
State of 

North Dakota
 

Office of the Governor 

John Hoeven 

Governor 

April 6, 2009 

Lisa Jackson, Administrator 

c/o Ms. Carol Rushin 

Acting Regional Administrator 

U.S. EPA, Region 8 

1595 Wynkoop Street 

Denver, CO 80202-1129 

Dear Administrator Jackson: 

I am submitting to the Environmental Protection Agency five copies of revisions to the 

State Implementation Plan for the Control of Air Pollution for the State of North Dakota. The 

State Health Department held a hearing on October 7, 2008 to receive testimony concerning 

amendments to the Air Pollution Control Rules and changes to the State Implementation Plan. 

Consideration has been given to the testimony as well as written comments received during the 

public comment period. A copy of the hearing record is incorporated with the revisions. 

If you have any questions concerning the revisions, please feel free to contact the Division 

of Air Quality of the Health Department at (701)328-5188. 

-

Ene: 

C:	 Dave Glatt, EHS Chief 

Terry O'Clair, Director - Air Quality 

38:63:59 

600 E Boulevard Ave.
 

Bismarck, ND 58505-0001
 

Phone: 701.328.2200
 

Fax: 701.328.2205
 

www.nd.gov
 
,1- Summary of SIP Changes 

4/09 

A.	 Interstate Transport for the 1997 8-hour ozone and PM25 NAAQS. 

Subsection 7.8.1: Entirely new subsection 

B.	 Implementation ofthe PMIO, PM2.5 and Ozone NAAQS. 

Subsection 1.1.4: Revisions to the Implementation Plan - entirely new subsection 

Subsection 2.1.5: Respecting Boards - entirely new subsection 

Section 6.8: Annual Network Review - replaces previous Section 6.8 

Section 6.11: Deleted 

Subsection 6.11.1: 

Subsection 6.11.2: 

Subsection 6.11.3: 

Air Quality Surveillance Particulate Matter (PM2.5) - replacement 

subsection 

Air Quality Surveillance Particulate Matter (PM!o) - replacement 

subsection 

Air Quality Surveillance Ozone - replacement subsection 

Section 7.7: Air Quality Modeling - new section 

Section 7.8: Interstate Transport of Air Pollution - new section 

Chapter 9: Resources - replaces previous Chapter 9 

C.	 Air Pollution Control Rules 

Chapter 33-15-01:	 General Provisions
 

Section 33-15-01-04 - replacement
 

,'­ Section 33-15-01-05 - replacement 
Section 33-15-01-13 - replacement 

Chapter 33-15-02: Ambient Air Quality Standards 

Table 1 ­ Revision to PMIO, PM2.5 and Ozone Standards 

Chapter 33-15-05: Emissions of Particulate Matter Restricted 

Subdivision 33-15-05-03 .2.2.d ­ deleted 

Chapter 33-15-14: 

Subsection 33-15-14-01.14 - revised 

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

Section 33-15-15-01.2 - Revised 

Chapter 33-15-23: Fees 

Subsection 33-15-23-03: Revised 
FINAL
 

Revisions to
 

Implementation Plan for the Control of Air Pollution 

and 

The Air Pollution Control Rules
 

of the State ofNorth Dakota
 

North Dakota Department of Health
 

Division of Air Quality
 

Air Pollution Control Program
 

918 E Divide Avenue
 

Bismarck, North Dakota 58501-1947
 

April 2009
 
TABLE OF CONTENTS 

Revisions to the Implementation Plan 

for the Control of Air Pollution for the 

State of North Dakota Section I 

Hearing Record Section II 

State Laws.. Section III 

Revisions to the Air Pollution 

Control Rules of the State of 

North Dakota......................................................................................................... Section IV 

Legal Opinion of the Attorney 

General.................................................................................................................. Section V 
SECTION I 

FINAL 

REVISION TO THE IMPLEMENTATION PLAN
 

FOR THE CONTROL OF AIR POLLUTION
 

FOR THE STATE OF NORTH DAKOTA
 

CHAPTER 1 

- SUBSECTION 1.1.4 (New), REVISIONS TO THE IMPLEMENTATION PLAN 

CHAPTER 2 

- SECTION 2.15 (New), RESPECTING BOARDS 

CHAPTER 6 

- SECTION 6.8 (Replacement), ANNUAL NETWORK REVIEW 

- SUBSECTION 6.11.1 (Replacement), AIR QUALITY SURVEILLANCE:
 

PARTICULATE MATTER (PM2.s)
 

- SUBSECTION 6.11.2 (Replacement), AIR QUALITY SURVEILLANCE:
 

PARTICULATE MATTER (PMIO) 

- SUBSECTION 6.11.3 (Replacement), AIR QUALITY SURVEILLANCE: 

OZONE 

CHAPTER 7 

- SECTION 7.7 (New), AIR QUALITY MODELING 

- SECTION 7.8 (New), INTERSTATE TRANSPORT OF AIR POLLUTION 

- SUBSECTION 7.8.1 (New), INTERSTATE TRANSPORT RELATING TO THE 

1997 8-HOUR OZONE AND PM2.s NATIONAL 

AMBIENT AIR QUALITY STANDARDS 

CHAPTER 9: RESOURCES (Replacement) 
(New section) 

1.14. REVISIONS TO THE IMPLEMENTATION PLAN 

The Department will revise this implementation plan as may be 

necessary to take account of revisions of the National Ambient Air 

Quality Standards (both primary and secondary) or the availability 

of improved or more expeditious methods of attaining these 

standards. The Department will also revise the implementation plan 

whenever the Administrator of the United States Environmental 

Protection finds, on the basis of information available to the 

Administrator, that the plan is substantially inadequate to attain 

the National Ambient Air Quality Standard which it implements or to 

otherwise comply with additional requirements established under the 

Federal Clean Air Act. The Department will make such revision only 

if the finding of the Administrator 1S in accordance with the 

requirements of the Federal .Clean Air Act. 
(New	 section) 

2.15. RESPECTING· BOARDS 

Section 110(a) (2) (E) (ii) of the Federal Clean Air Act requires 

compliance with the requirements respecting state boards under 

Section 128. Section 128 requires each implementation plan to 

contain requirements that: 

(1)	 any board or body which approves permits or enforcement 

orders under this Act shall have at least a majority of 

members who represent the public interest and do not 

derive any significant portion of their income from 

persons subject to permits or enforcement orders under 

this Act, and 

(2)	 any potential conflicts of interest by members of such 

board or body or the head of an executive agency with 

similar powers be adequately disclosed. 

A state may adopt any requirements respecting conflicts of 

interest for such boards or bodies or heads of executive agencies, 

or any other entities which are more stringent than the 

requirements of paragraphs (1) and (2), and the Administrator shall 

approve any such more stringent requirements submitted as part of 

.,.........
 

an implementation plan. 
North Dakota has no boards that approves permits or 

enforcement orders; therefore, this section of the Act is not 

applicable . 

•
 
(Section 6.8 is deleted and replaced with the following) 

6.8. ANNUAL NETWORK REVIEW 

Commencing on 0anuary 1 of each year, the ambient air quality 

monitoring network will be reviewed to determine if additional 

monitoring is needed or if existing stations are no longer 

necessary. The review process will take into account the network 

design criteria established In 40 CFR Part 58.10. A report of the 

findings will be submitted to EPA by July 1 of each year, along 

with a schedule to implement those revisions deemed necessary. 
•.

(Section 6.11 is deleted and replaced with the following) 

6.11.1. AIR QUALITY SURVEILLANCE: PARTICULATE MATTER (PM2 . 5 ) 

The State of North Dakota will maintain a PM2 . 5 network as long 

as the need for PM2 . 5 data exists. The number and location of 

samplers will be determined by the State's need in accordance with 

Section 6.8. The current installed network (October 2008) lS 

listed in the following table and displayed in Map 1. As revisions 

are made to the monitoring network, an updated description of the 

network will be available from the Department. 

PM2 . 5	 Si tes 

Site Name Sampler Type 

Beulah-North Manual & Continuous 

Bismarck Residential Manual & Continuous 

Dunn Center Continuous 

Fargo NW Manual & Continuous 

Hannover Continuous 

Lostwood NWR Continuous 

TRNP - NU Manual & Continuous 

*TRNP - SU Manual & Continuous 

*	 TRNP-SU is a National Park Service site operated by the 

Department . 
__

PM2.

5 Monitoring Sites 

® Dunn Center 

Bismarck 

L,------',------~---J

"-------~_~ --------'L-~_~_~~~L Map 1 

6~11.2 Air Quality Surveillance: Particulate Matter (PM10 ) 

The State of North Dakota will maintain a PM10 network as long 

as the need for PM10 data exists. The number and location of 

samplers will be determined by the State's need in accordance with 

Section 6.8. The current installed network (October 2008) is 

listed in the following table and displayed in Map 2. As revisions 

are made to the monitoring network, an updated description of the 

network will be available from the Department. 
PM10 Si tes 

Site Name Sampler Type 

Bismarck Residential Continuous 

Dunn Center Continuous 

Fargo NW Continuous 

Lostwood Continuous 

TRNP - NU Continuous 

Beulah - North Continuous 

PM10 Monitoring Sites 

Bismarck 

@ 

Fargo 

Dunn

*

Center 

TRNP· NU 

® 

Map 2 
6.11.3 Air Quality Surveillance: Ozone 

The State of North Dakota will maintain an ozone network as 

long as the need for ozone data exists. The number and location of 

samplers will be determined by the State's need in accordance with 

Section 6.8. The current installed network (October 2008) is 

listed in the following table and displayed in Map 3. As revisions 

are made to the monitoring network, an updated description of the 

network will be available from the Department. 

Ozone Sites 

Bismarck Residential
 

Beulah-North
 

Dunn Center
 

Fargo NW
 

Hannover
 

Lostwood NWR
 

TRNP - NU
 

*TRNP - SU
 

*	 TRNP-SU is a National Park Service site operated by the 

Department. 
Ozone Monitoring Sites
 
(New Section) 

7.7 AIR QUALITY MODELING 

The Department will perform such air quali ty modeling as 

necessary for the purpose of predicting the effect on ambient air 

quality of any emissions of any air contaminant for which a State 

or National Ambient Air Quality Standard has been established. The 

Department will submit, upon request, data related to the air 

quality modeling to the Administrator of the Environmental 

Protection Agency. Air quali ty modeling for new or modified 

sources will be conducted in accordance with Subsection 33-15-14­

02.4 and Section 33-15-15-01.2 of the North Dakota Administrative 

Code (NDAC) Public comment and transmittal of modeling data to 

EPA for new or modified sources will be in accordance with NDAC 33­

15-14-02.6 and 33-15-15-01.2. 
(New	 Section) 

7.8	 INTERSTATE TRANSPORT OF AIR POLLUTION 

Section 110(a) (2) (D) (i) of the Federal Clean Air Act requires 

State Implementation Plans to contain adequate provisions 

prohibiting any source or other type of emissions activity within 

the State from emitting any air pollutant in amounts which will: 

(1)	 Contribute significantly to nonattainment in, or interfere 

with maintenance by, any other State with respect to any such 

national primary or secondary ambient air quality standard, or 

(2)	 Interfere with measures required to be included ln the 

applicable implementation plan for any other state under Part 

C to prevent significant deterioration of air quality or to 

protect visibility. 

In the review process for new or modified stationary sources, 

or other types of emissions activities, the Department will assess 

the impact on neighboring states. When emissions are reasonably 

suspected of contributing significantly to the ambient air quality 

concentration in neighboring states, receptors for any dispersion 

modeling analysis will be placed in the neighboring state and the 

compliance status with respect to the National Ambient Air Quality 

Standards and Prevention of Significant Deterioration increments 
will be determined. With respect to visibility, an assessment of 

the impact on PSD Class I area's visibility will be made when a 

significant impact is suspected. The analysis will be conducted in 

accordance with Chapters 33-15-14, 33-15-15, and 33-15-19 of the 

Air Pollution Control Rules. 

7.8.1	 Interstate Transport Relating to the 1997 8-hour Ozone 

and PM2 . 5 National Ambient Air Quality Standards. 
1 

Section 7.8.1
 

Interstate Transport Relating
 

to the 1997 8-hour Ozone and PM2 . S
 

National Ambient Air Quality Standards
 

A. Overview 

Section 110 (a) (2) (D) (I) of the Clean Air Act states that each 

State must submit a State Implementation Plan (SIP) that 

contains adequate provisions: 

(i) prohibiting, consistent with the provisions of this 

title, any source or other type of emissions activity 

within the State from emitting any air pollutant in 

amounts which will 

(I) contribute significantly to nonattainment in, 

or interfere with maintenance by, any other State 

with respect to any such national primary or 

secondary ambient air qual~ty standard, or 

(II) interfere with measures required to be 

included in the applicable implementation plan 

under Part C to prevent significant deterioration 

of air quality or to protect visibility. 

B. Nonattainment and Maintenance Area Impact 

To demonstrate that emissions from North Dakota do not 

significantly contribute to nonattainment or interfere with 

maintenance of compliance with the National Ambient Air 

Quality Standards for ozone or particulate matter with an 

aerodynamic diameter of less than or equal to 2.5 micrometers 

(PM2 . S )' North Dakota relies on the modeling conducted by the 

u. S. Environmental Protection Agency during the development of 

the Clean Air Interstate Rule (CAIR) and on monitoring data 

and attainment status for the appropriate upwind and down wind 

areas. Supporting data and analysis for PM2 . S and ozone 

follows. 

North Dakota, as reported in the May 12, 2005 Federal Register 

Final Rule notice, was one of the 37 states that were 

evaluated for impact on nonattainment areas (70 CFR 25188, 

May 12, 2005). The results of EPA's modeling analysis, which 

determined the maximum contribution from each upwind state to 

downwind PM2 . S nonattainment, indicate that the maximum North 

Dakota contribution to downwind states was well below the 

interstate transport threshold of 0.2 Ug/mJ (70 FR 25247, Table 

VI-7, May 12, 2005). 
2 

The closest nonattainment area for PM2 . 5 is at Libby, Montana, 

which is approximately 450 miles from the western most border 

of North Dakota. This nonattainment area is generally upwind 

of North Dakota and is influenced by local factors including 

topography and meteorology. Because the nonattainment area is 

generally upwind of North Dakota emission sources and the 

large distance between these sources and the nonattainment 

area, it is unlikely that North Dakota sources significantly 

contribute to nonattainment. 

To determine which of the initial 37 states contributed 

significantly to ozone interstate transport, in its Proposed 

and Final CAIR Federal Register notices EPA adopted modeling 

domains that excluded large parts of six states, one of which 

is North Dakota (69 FR 4584 and 4600, January 30, 2004; 70 FR 

25246, May 15, 2005). North Dakota uses available monitoring 

and nonattainment information to demonstrate that it is 

unlikely that the State contributes significantly to ozone 

nonattainment or interferes wi th ozone maintenance in downwind 

states. 

The closest nonattainment area for the 8-hour ozone standard 

is located in Colorado (Fort Collins, Boulder, Denver area) . 

The northern border of this area is located approximately 325 

miles south-southwest of the southwestern most point of North 

Dakota. The next closest nonattainment area is located along 

the eastern edge of Wisconsin, approximately 400 miles from 

the eastern border of North Dakota. The Wisconsin area is 

generally located downwind of North Dakota emission sources 

while the Colorado area is not. 

Monitoring data gathered by the states and reported by the EPA 

Air Quality System indicates that during the years 2004-2006 

none of the moni tors in the State of North Dakota showed 

exceedances for the 8-hour ozone standard. During the same 

three-year period the moni tors in Iowa and Minnesota, the 

closest and most likely to be affected among the downwind 

states, measured 8-hour ozone exceedances on less than 0.5 

percent of the days. Iowa monitors monitored 8-hour 

exceedances on two days, and Minnesota monitors on three days. 

The absence of 8-hour ozone exceedances in North Dakota 

combined with the rare occurrence of exceedances in Iowa and 

Minnesota make it unlikely that the State of North Dakota 

contributes significantly to ozone transport affecting 

attainment or interfering with maintenance of NAAQS standards 

in downwind states. 
-
 3 

Based on the conclusions drawn above about the unlikely 

occurrence of significant interstate transport of ozone from 

North Dakota to Minnesota or Iowa, it would follow that such 

a transport would be even less likely from North Dakota to the 

Wisconsin nonattainrnent area, which lies significantly further 

east than Minnesota. 

Based on the results of the EPA's modeling in the development 

of the CAIR rule, the relative distance of North Dakota to 

downwind nonattainrnent areas, and analysis of moni toring data, 

the State of North Dakota concludes that emissions from North 

Dakota do not significantly affect nonattainrnent or 

maintenance areas in other states. 

C. Impact on Prevention of Significant Deterioration (PSD) 

EPA guidance 1 indicates that states with State Implementation 

Plans (SIP's) addressing Prevention of Significant 

Deterioration (PSD) and Nonattainrnent New Source Review (NNSR) 

have adequately demonstrated that they do not affect PSD 

implementation in other states. EPA guidance1 states: 

1 )	 ~For 8-hour ozone, each state dnly needs to make a SIP 

submission confirming that major sources in the State are 

currently subject to PSD and NNSR permitting programs 

that implement the 8-hour ozone standard and that SIPapproved states are on track to meet the June 15, 2007 

deadline for SIP submissions adopting the requirements of 

the Phase II ozone implementation rule." 

2 )	 "For PM2 . s , states need only provide a SIP submission 

confirming that major sources in the state are subject to 

PSD and NNSR permitting programs implemented in 

accordance with EPA's interim guidance calling for use of 

PM10 as a surrogate for PM2 . s in the PSD and NNSR 

programs." 

North Dakota has a SIP approved PSD program. Since North 

Dakota has no nonattainrnent areas, there is no NNSR program. 

North Dakota's PSD SIP was updated effective February 1, 2005, 

lEPA, August 15, 2006. Guidance for State Implementation 

Plan Submissions to Meet Current Outstanding Obligations Under 

Section 110(a) (2) (D) (I) for the 8-Hour Ozone and PM2 . S National 

Ambient Air Quality Standards. (page 8) 
4 

to conform with the federal NSR Reform rules. These changes 

have been submitted to EPA and were approved effective 

August 20, 2007. North Dakota will implement the current 

rules in accordance with EPA's interim guidance using PM10 as 

a surrogate for PM25 in the PSD program. The 8-hour ozone 

standard is applied to all major sources in the state that are 

subject to PSD review. 

Based on the conclusions stated by EPA in their August 15, 

2006 guidance 1 , the State of North Dakota concludes that its 

implementation of its PSD SIP ensures that North Dakota 

emission sources do not interfere with PSD implementation in 

other states. 

D. Protection of Visibility 

The August 15, 2006 guidance J states: 

"At this point in time, EPA has made no determination that 

emissions from any State interfere with measures required to 

be included in a plan to address reasonably attributable 

visibility impairment. Further, EPA is not aware of any 

certification of existing reasonably attributable impairment 

of visibility by a Federal Land Manager that has not already 

been resolved. The EPA accordingly believes that States 

should be able to make a relatively simple SIP submission 

verifying that no source within the State emits pollutants 

that interfere with measures included in the visibility SIPs 

under the 1980 regulations." 

Based on the conclusions stated by EPA, the State of North 

Dakota concludes there are no North Dakota sources of 

emissions that interfere with implementation of visibility SIP 

under the 1980 regulations. 

The State of North Dakota is working with the Western Regional 

Air Partnership, including associated States and stakeholders, 

to prepare a SIP to address the EPA Regional Haze regulation 

(40 CFR 51.308). Until regional haze SIPs are submitted and 

approved, North Dakota believes it is not possible at this 

IEPA, August 15, 2006. Guidance for State Implementation 

Plan Submissions to Meet Current Outstanding Obligations Under 

Section 110 (a) (2) (D) (I) for the 8-Hour Ozone and PM2 . 5 National 

Ambient Air Quali ty Standards. (page 8) 

2I bid. (page 9) 
5 

time to assess whether there is any interference with measures 

in the applicable SIP for another state for regional haze. 

(Chapter 9 is deleted and replaced with the following) 

9. RESOURCES 

Section 110(a) (2) (E) (i) of the Clean Air Act requires adequate 

funding and personnel to carry out the provisions of the State 

Implementation Plan. The Heal th Department must provide for 

adequate resources at the present date and into the future. 

The organizational structure of the Department of Health and 

Environmental Health Section are shown in Figures 3 and 4. The Air 

Pollution Control Program of the Department of Health is under the 

Division of Air Quali ty. The organizational structure of the 

Division of Air Quality is shown in Figure 5. 

The Department of Heal th commi ts to maintaining adequate 

funding and personnel to carry out the provisions of the State 

Implementation Plan. Work activities and resources committed to 

those activities are negotiated with EPA on a biennial basis 

through the Performance Partnership Agreement process. The Health 

Department commits to review biennially the amount of resources 

dedicated to carrying out the State Implementation Plan provisions 

and making adjustments as necessary. 
I 

FiW· ...,e 3 

) North Dakota .,~rtment of Health 

State Health Council ~, Dennis Wolf, M.D., Chainnan ...........................
 

Healthy North Dakota 

I Melissa Olson 

I Research Epi Center 

Stephen Pickard, M.D. 

I
 

I 

Community Health 

Leadership Team'" I 

Tob~cco Prevention and Control I 

Karalee Halper 

-I Cancer Prevention and Control I 

Mary Ann Foss 

l Injury Prevention and Control I 

Mary Dasovick 

H Family Health 

Kim Senn I 

l Chronic Disease 

Sherri Paxon I 

Nutrition and Physical Activity·' 

Colleen Pearce 

-' 

"­

Public Health
 

Training Center
 

State Health Officer - Terry Dwelle, M.D. 

Deputy State Health Officer - Arvy Smith 

I 

I 

I Accounting. 

r Kathy Albin 

I Public Information I........··..··..·..·.... Loreeta Canton 

I Information Technology 

Darin Meschke 

Emergency Preparedness 

and Response 

Tim Wiedrich 

Special Populations
 

John Baird, M.D.
 

Children's Special Health
 

Services
 

Tammy Gallup-Millner
 

Elimination of Health
 

Disparities
 

Phyllis Howard
 

Organizational Chart
 

May 2008
 

Medical Services
 

Craig Lambrecht, M.D.
 I 

Field Medical Officers 

Craig Lambrecht, M.D. 1 

State Forensic Examiner 1 

William Massello III, M.D. 

Disease Control
 

Kirby Kruger
 I
 

°The six division director.; share responsibility for management of the Community Health Section. 

I 

I 

Administrative Support 

ArvySmith I 

Vital Records 

Darin Meschke I 

Human Resources 

KenyOlson I 

Education Technology 

Tim Wiedrich I 

Local Public Health 

Kelly Nagel I 

I I . llealth Resources Environmental Health 

Darleen Bartz~ Ph.D. 

Emergency Medical Services I
 

Tim Meyer
 

Food and Lodging
 

Kenan Bullinger
 -1 I
 

Health Facilities 

Bruce Pritschet I
 

Community Assistance
 

Gary Garland
 I 


 

--1
 


 


 

Dave Glatt I 

Air Quality
 

Teny O'Clair
 I 

Laboratory Services 

Myra Kosse I 

Municipal Facilities 

Wayne Kern I 

Waste Management 

Scott Radig I 

Water Quality
 

Dennis Fewless
 I
 
Figure 4 

North Dakota Department of Health
 

Environmental Health Section
 

Section 

Chief 

701.328.5150 

L. David Glatt 

Assistant 

Attorney General 

701.328.5151 or ­

701.328.3646 

Dean Haas 

I I 

Laboratory 

Services 

701.328.6140+ 

701.328.6272++ 

Myra Kosse 

Air Quality 

Division 

701.328.5188 

Terry O'Clair 

-Organics Analysis
 

Jim Quarnstrom-+
 

-Inorganics Analysis 

Jim Quarnstrom-+ 

-Quality Assurance! 

Quality Control & 

. Lab Certification 

Errol Erickson+ 

-Bacteriology, MycoBact., Dairy, Water, 

Parasit. & Molecular 

lisa WellH 

-Special Projects 

Coordinator 

Tom Bachman 

-Air Quality 

Permitting & 

Compliance 

Jim Semerad 

'-Air Quality 

Impact Analysis 

Steve Weber 

I-Air Quality 

Monitoring 

Justin Mayer 

-Immunology, Virology, ~adiation & 

Rabies, Arbovirus, Indoor Air 

& Molecular Dan Harman 

Mike TrythallH 

. -Bioterrorism Program 

Jan Trythalr+ 

-IT, Clinical lab Improve­


Ment Ammendment. Quality
 

Assurance, Quality Control
 

Eric Hieb H
 

Municipal 

Facilities 

Division 

701.328.5211 

D. Wayne Kern 

-Clean Water State 

Revolving' Fund 

Jeff Hauge­

'-Drinking Water 

State Revolving 

Fund Program 

David Bruschwein 

-Drinking Water 

Program 

Larry Thelen 

I 

Waste 

Management 

Division 

701.328.5166 

Scott Radig 

I-Solid Waste 

Program 

Steven TillotsonHazardous Waste 

& PCB Program 

Curtis Erickson 

-Unde·rgound 

Storage Tank & 

L.U.S.T. Program 

Gary Berreth 

I
 

Water Quality 

Division 

701.328.5210 

Dennis Fewless 

f-Special Projects 

Coordinator 

Michael Sauer 

Permits
 

Program
 

Gary Bracht
 

Surface Water 

Management 

Program 

Michael Ell 

LGround Water 

Program 

Carl Anderson 

-Assistant Director 

'Chemlstry Division 

++Microbiology Division 

June 2008 
Figure,_S 

NORTH DAKOTA DEPN ~ENT OF HEALTH ) 1 

DIVISION OF AtK QUALITY 

DIRECTOR
 

T6.rr'j OClair
 

SECRETARIAL SERVICES 

Sherri Jahraus H 

Connie Gaitan 

--...--1­

-Kelsie Seiler 

II 

SPECIAL PROJECTS 

COORD!NATOR 

Tom Bachman 

r--------------¥---~ .-.---.~-----,..-----.-.-.--_ .. ! ,-_._---_ _--------_.- -_.._-------_ .. 

! 

NR QUALITY AIR QUALITY I/vlPACT ANAlYSI S A1H QUALITY MONITORING RADIATlON AND INDOOR AIR PERMITTING/COMPLIANCE Stella Weber Justin Mayer Datl Harman Jim Semerad 

Lavns Dandy 

Ban Gress 

--Keith Hinnenkamp 

-Jessica Kellar 

--Gary Kline 

-Casey Mutzenberger 

--Todd Peterson 

~Nid< Pmm" 

, Kyta Schneider 

i 

~Craig Thorstenson 

---Robert V</hit€< f-.-Emie Erickson 

--Ron Patch 

I=RyanMiIIS 

Greg Ulberg 

Mark Dihle 

f-Warren Freier 

-Jane Kangas 

I--Jam&S Lawson 

i 

f----Justin Otto 

--Louise Roahricl 

/--J Rondeau r 

L_ 

Sandi Wahek 

11/17/2008
 

Chapter 11
 

Section 11.22
 

Regulation Revisions
 

Public Hearing
 

October 7,2008
 

Chapter 23-25 of the North Dakota Century Code provides the legal authority that empowers the 

North Dakota State Department ofHealth to implement the Air Pollution Control Law for the State 

of North Dakota. Article 33-15 "Air Pollution Control" ofthe North Dakota Administrative Code 

contains the rules and regulations implemented to control air pollution in the State. Article 33-15 

consists of 25 chapters numbered from 33-15-01 through 33-15-25. There are several different 

processes by which EPA delegates authority to the State to manage and protect the air quality 

resources of the State. Historically, the State has gained such authority through the State 

Implementation Plan process. Two other processes are also used. The first is through direct 

delegation procedures and the second involves rules that deal with Title V authorities in the Clean 

Air Act. Only the changes to the State Implementation Plan are presented in this document. 

Changes to the following sections are being submitted as revisions to the State Implementation 

Plan: 

33-15-01	 General Provisions 

• Section 33-15-01-04. Definitions 

•	 33-15-01-05. Abbreviations 

•	 Subdivision 33-15-01-13.1.f 

•	 Subsection 33-15-01-13.2. Malfunctions 

•	 Subsection 33-15-01-13.3. Continuous emission monitoring 

system failures 

33-15-02	 Ambient Air Quality Standards 

•	 Table I. Ambient Air Quality Standards 

33-15-05	 Emissions of Particulate Matter Restricted 

•	 Subdivision 33-15-05-03.2.2.d. Malfunctions (deleted) 

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

Source Permit to Operate, Title V Permit to Operate 

•	 Subsection 33-15-14-01.14 

•	 Subdivision 33-15-14-02.4.a. Submission of Plans ­

Deficiencies in Application 

•	 Paragraph 33-15-14-02.4.b.(2) 

•	 Subdivision 33-15-14-02.6.c 

•	 Subdivision 33-15-14-02.13.0 

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

• Section 33-15-15-01.2. Scope 

A "Revision Summary" is presented which shows all of the changes made to the North Dakota Air 

Pollution Control Rules. However, only the previously listed sections are revisions to the State 
Implementation Plan. The revised sections are included as Appendix C of this State 

Implementation Plan revision. 
,~
SUMMARY OF PROCEEDINGS
 

The North Dakota Department of Health, prior to revising the Implementation Plan and Air 

Pollution Control Rules, conducted a public hearing on the plan and rules. Reasonable notice as 

required by Title 40 of the Code of Federal Regulations, Section 51.102, Public Hearings, and as 

required by the North Dakota Century Code, Chapter 23-25 was given. Notice of the public 

hearing was provided by two publications in each ofthe official county newspapers in the State on 

or before September 6, 2008. The last publication occurred 30 days prior to the hearing. The 

hearing was held October 7, 2008, at the Health Department's office located in Bismarck. In 

addition to the official public notice, a press release announcing the hearing was made available in 

the State's major newspapers approximately one week before the hearing. 

The Administrator of the Environmental Protection Agency, the Directors of the Minnesota 

Pollution Control Agency; the Natural Resources Program Administrator for the State of South 

Dakota; the Chief of the Air Quality Bureau, Montana State Department of Environmental 

Quality; Indian governing bodies within North Dakota; Federal Land Managers of Class I areas 

within North Dakota; the Bureau ofNational Affairs and many interested parties listed on the State 

Department of Health Air Pollution Control mailing list, were notified of the public hearing. 

The revisions to the Implementation Plan and the amendments to the Air Pollution Control Rules 

were made available for public inspection-30 days prior to the public hearing. 

The North Dakota Department of Health submitted a "DRAFT" copy of the proposed rule changes 

to the Environmental Protection Agency. Copies of the record of the hearing were furnished to 

the public upon request. 

Copies of the notice of public hearing and certification that the hearing was held in accordance 

with the notice as required by Section 51.102, Public Hearings, Title 40 of the Code of Federal 

Regulations, are included in Appendix A of this document. As required by the North Dakota 

Century Code, Chapter 23-25, the revisions to the rules were reviewed by the Air Pollution Control 

Advisory Council and any recommendations considered by the North Dakota State Health 

Council. Following review and consideration by the State Health Department, the rules were 

considered and adopted by the North Dakota State Health Council. The legal opinion ofthe State 

Attorney General that the amendments are legal, valid and have the force and effect of law was 

obtained before final adoption ofthe rules. The legal opinion ofthe Attorney General is included 

in Section V of this document and will be included in Appendix D of the original SIP document 

maintained in the Department offices. 
SECTION II
 

HEARING RECORD
 

Appendix A of the Plan 
HEARING RECORD
 

Air Pollution Control Rules Revisions
 

and
 

State Implementation Plan Amendments
 

North Dakota Department of Health
 

Air Pollution Control Program
 

Hearing Date: October 7, 2008 

..,........
 
HEARING RECORD 

TABLE OF CONTENTS 

Revision Summary 

Hearing Notice 

Press Release 

Affidavit of Publication 

Invoice of Publication 

Registration List of Attendees 

Hearing Transcript 

Certification of Hearing 

Response to Public Comments 

-,~
02/20109
 

Amendments to
 

North Dakota Air Pollution Control Rules
 

Revision Summary
 

The following summarizes the proposed changes to the North Dakota Air Pollution Control Rules. 

Chapter 33-15-01 - General Provisions 

Section 33-15-01-04.2 - Text was added to further define "air contaminant" as that which is 

emitted to the ambient air. 

Section 33-15-01-04.10 - This section was added to define the term "excess emissions." 

The subsequent sections were renumbered. 

Section 33-15-01-04.32 - This section was added to define the term "PM2.5." The 

subsequent sections were renumbered. 

Section 33-15-01-04.52 - The baseline date for incorporation by reference was updated to 

March 1, 2008. 

Section 33-15-01-05 - The abbreviations for "PM" and "PM2.5" were added. 

Section 33-l5-01-13.1.f - This section was added to state that the excess emissions are not 

authorized. 

Section 33-15-01-13.2.a - A portion of this section was deleted to preclude the possible 

perception that the Department might authorize the release of emissions in excess of a 

limit. 

Section 33-15-01-13.2.c - This section was added to address excess emissions as a result of 

an unavoidable malfunction. 

Section 33-15-01-13.3 - Text was both deleted and added to revise the requirements for 

alternative emissions monitoring in the event of failure of a continuous emission 

monitoring system. 

Chapter 33-15-02 - Ambient Air Quality Standards 

Table 1 - Two ambient air quality standards were amended (PMIO and ozone) and one 

was added (PM2.5) to reflect revisions to the federal standards. 
Chapter 33-15-05 - Emissions of Particulate Matter Restricted 

Section 33-15-05-03.2.2.d - This section which discussed operator actions to be taken in 

the event of an incinerator malfunction was deleted. 

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

Section 33-15-12-01.1 - The baseline date for incorporation by reference was updated to 

March 1, 2008. 

Section 33-15-12-02, Subpart Da - A sentence was added to reflect the deletion from this 

subpart of requirements for mercury. 

Section 33-15-12-02, Subpart HHHH - This subpart was deleted to reflect vacatur of the 

federal rule concerning coal-fired electric steam generating units. 

Section 33-15-12-02, Subpart KKKK - This subpart was added to reflect an addition to the 

federal rule concerning stationary combustion turbines. 

Chapter 33-15-13 - Emission Standards for Hazardous Air Pollutants 

Section 33-15-13-01.1 - The baseline date for incorporation by reference was updated to 

March 1, 2008. 

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

Source permit to Operate, Title V Permit to Operate 

Section 33-15-14-01.14 - The field of applicable sources was limited to major sources. 

Section 33-15-14-02.4.a - The text was revised to reflect the current name of the Division 

of Air Quality. 

Section 33-15-14-02.4.b(2) - The text was revised to reflect the current ZIP code of 

Research Triangle Park. 

Section 33-15-14-02.6.c - The reference to the location of the text concerning public 

participation was revised.
 

Section 33-15-14-02.13.0 - A reference was revised.
 

Section 33-15-14-06.1.c - An incorrect reference to title VI was corrected to refer to title
 

IV. 

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

Section 33-15-15-01.2 - The baseline date for incorporation by reference was updated to 

August 1, 2007, and paragraphs referenced were updated. 
Section 33-15-15-01.2, 40 CFR 52.21 (b)(2)(a) - The reference to the provisions for routine
 

maintenance, repair and replacement in Section (cc) is being deleted.
 

Section 33-15-15-01.2,40 CFR 52.21(b)(58) - The paragraph is being deleted.
 

Section 33-15-15-01.2, 40 CFR 52,21 (i)(5)(ii) - A correction to a reference is being made.
 

Section 33-15-15-01.2, 40 CFR 52.21(1)(1) - The date of appendix W of40 CFR 51 was
 

revised.
 

Section 33-15-15-01.2, 40 CFR 52.21(q) - The letter designation of paragraph q was
 

corrected.
 

Section 33-15-15-01.2,40 CFR 52,21(q)(2) - The paragraph is being clarified to indicate
 

the Department must make a preliminary determination in one year.
 

Section 33-15-15-01.2, 40 CFR 52.21(q)(2)(t) - The length of time allowed for an 

applicant's response to public comments was extended and procedures were added to allow 

for an additional extension. 

Section 33-15-15-01.2, 40 CFR 52.21 (r)(6) - The word "reasonable" is being deleted. 

Section 33-15-15-01.2, 40 CFR 52.21 (y)(3)(ii), (y)(7), and (z)(5) - Text previously 

substituted for the federal rule was deleted. 

Chapter 33-15-21 - Acid Rain Program 

Section 33-15-21-08.1 - The baseline date for incorporation by reference was updated to 

March 1, 2008. 

Section 33-15-21-10 - The baseline date for incorporation by reference was updated to 

March 1, 2008. 

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

Section 33-15-22-01 - The baseline date for incorporation by reference was updated to 

March 1, 2008. 

Section 33-15-22-03, Subpart HH - A statement was added to indicate that only major 

source requirements are adopted. 

Section 33-15-22-03, Subpart DDDDD - This section was deleted because the subpart was· 

vacated. 
Section 33-15-22-03, Subpart JJJJJ - This section was deleted because the subpart was 

vacated. 

Chapter 33-15-23 - Fees 

Section 33-15-23-03.1 - The definition of a "designated" source was simplified. The State 

government fee rate was expanded to include local government. 

Section 33-15-23-03.4 and Section 33-15-23-04.11 - The date the annual permit fee is due 

is being defined as sixty days following the date of the billing letter to provide a more 

precise due date. 

Public Notice
 

Abbreviated Notice of Intent to Adopt
 

and Amend Administrative Rules Relating
 

to Air Pollution Control
 

Take notice that the North Dakota Department of Health along with 

the North Dakota Air Pollution Advisory Council will hold a public 

hearing to address proposed changes to the North Dakota 

Administrative Code Article 33-15. The hearing will be at 9:00 

4th a.m. CDT on Tuesday, October 7, 2008, in the floor conference 

room of the Gold Seal Center- located at 918 E Divide Avenue, 

Bismarck, North Dakota. The public hearing will address proposed 

rules that reflect changes to the New Source Performance Standards, 

the National Emissions Standards for Hazardous Air Pollutants for 

Source Categories, Prevention of Significant Deterioration, and 

startup/shutdown rules. The Department is also seeking comments on 

changes to the State Implementation Plan that address interstate 

transport of air pollution and implementation of the new ambient 

air quality standards for PM10 and ozone. 

The rules may be viewed at the Department's website at: www.health. 

state.nd.us/EHS/PublicNotices.aspx. A copy of the proposed rules 

may be obtained by wri ting to the North Dakota Department of 

2 Health, Division nd of Air Quality, 918 E Divide Avenue, Floor, 

Bismarck, ND 58501-1947 or calling (701)328-5188. Written comments 

may be submitted to the above-address from September 15, 2008 ,-.......... 

through October 18, 2008. 
If you plan to attend the public hearing and will need special 

facilities or assistance relating to a disability, please contact 

the Department of Health at the above-address at least seven days 

prior to the public hearing. 

Dated this ·~1=3~t_h _ day of August 2008 

Terry L. O'Clair, P.E. 

Director, Division of 

Air Quality 
ABBREVIATED NOTICE 

OF INTENTTOAMEND 

ADMINISTRATIVE RULES 

relating to Air Pollution Control. 

North Dakota
 

Department
 

of Health 

will hold a public hearing to address 

proposed changes to the N.D. Admin. 

Code Article 33-15 and the State 

Implementation Plan (SIP) for the control 

of air pollution. 

4th Floor Conference Rm.
 

Gold Seal Center
 

918 E. Divide Ave.
 

Bismarck, NO
 

Tues., Oct. 7, 2008
 

9:00 a.m. COT 

A copy of the proposed rules and SIP 

revisions may be viewed at the 

Department's website at: 

www.health.state.nd.us/EH 51 

PublicNotices.aspx. A copy of the 

proposed rules and SIP revisions may 

be obtained by writing to the North 

Dakota Department of Health, Division 

of Air Quality, 918 E. Divide Ave., 2nd 

Floor, Bismarck, NO 58501-1947 or 

calling (701) 328-5188. Written 

comments may be submitted to the 

above-address from September 15, 

2008 through October 18, 2008. If you 

plan to attend the hearing and will need 

special facilities or assistance relating 

to a disability, please contact the 

Department of Health at the above 

telephone number or address at least 

seven days prior to the hearing. 

Dated this 13th day of August, 2008.
 

Terry L. O'Clair, P.E.
 

Director, Division of Air Quality
 
North Dakota Air Quality Home Page· Microsoft Internet Eleplorer 

Fle Edt View Favorites Tools He'p 

(,}Back • 

r:J~ . 

Norrh Dakota nd.gov OIfcool Portal 'or I Nt"rth oakO~3 St.ne G:Dve+"lt"Jl~ml .J Search] " 

~"~

.~ NORTH DJ\~.9TA DEPARTMENTaf HEALTH 

..,.., 

,	 Horne 

All' Quality Rules 

AI r Quality Forms 

Air Permitting 

·	 Air Toxles 

Open Burmng 

S~usiness

• C .IS Wells 

·	 Emission Testing 

Emlssignlnventory 

• Ambient Monitoring 

· Dispersion Modeling 

• Regional Haze 

·	 Training 

Links 

Contact Us 

Air Quality 

Public Notices and Hearing Dockets 

Some documents (pdf) en this page require the Adobe Acrobat Reader in order to be viewed. Ali pdf documents wiil 

open in a new window, 

Rule and State Implementation Plan Revisions 

• Public Notice 

• Rule Revision Summary 

• Cha pteI' 33-15-01 

- Chapter 33-15-02 

- Chapter 33-15-05 

- Chapter 33-15-12 

- Chapter 33-15-13 

- Chapter 33-15-14 

- Chapter 33-15-15 

- Chapter 33-15-21 

- Chapter 33-15-22 

- Chapter 33-15-23 

- 2008 

• Interstate Transport of Ozone and PM25-SIP Revision 

• Ozone and PM25 NMQS Implementation SIP Revision 

Minnkota Power Cooperative - Preliminary BACT Determination for NOx 

• Extension of Public Comment Period 

• Public Notice 

NORTH DAKOTA 

DEPARTMENToF HEALTH 

NEWS RELEASE 

For Immediate Release:	 For More Information, Contact: 

Oct. 2, 2008	 Tom Bachman, Environmental Engineer 

North Dakota Department of Health 

Division of Air Quality 

Phone: 701.328.5188 

E-mail: tbachman(cu,nd.gov 

Air Pollution Control Advisory Council Schedules Public Hearing 

BISMARCK, N.D. - The North Dakota Air Pollution Control Air Advisory Council and the
 

North Dakota Department of Health have scheduled a public hearing to address proposed
 

changes to the North Dakota Air Pollution Control Rules and State Implementation Plan for the
 

control of air pollution. The public hearing will be held Oct. 7,2008, at 9 a.m. in the Fourth
 

- Floor Conference Room of the Gold Seal Center, 918 E. Divide Ave., Bismarck, N.D.
 .


The primary amendments to the North Dakota Air Pollution Control Rules include:
 

• Requirements for demonstration of unavoidable malfunctions.
 

• Prevention ofsignificant deterioration.
 

• Ambient air quality standards.
 

The public also may submit written comments about the changes by Oct. 18, 2008. The public is 

invited to direct their comments to Tom Bachman, Division of Air Quality, North Dakota 

Department ofHealth, 918 E. Divide Ave., Bismarck, ND 58501-1947. 

The Air Pollution Control Advisory Council is a nine-member panel that considers and makes 

recommendations regarding the adoption, amendment or repeal of rules and standards pertaining 

to North Dakota air quality. 

For more information, contact Tom Bachman, North Dakota Department of Health, at 

701.328.5188. 

-- 30 -­

Please note: To access archived news releases and other information. visit the North Dakota 

Department ofHealth Press Room at lV1HI'.nddof!press/"()o/ll. gOY. 

600 E. Boulevard Ave. Dept. 301, Bismarck, North Dakota 58505-0200
 

Phone: 701.328.2372 Fax: 701.328.4727 E-mail: hcalth(u.~nd.g()"
 

Visit the health department home page at wfIJ1v.ndhealtl1.gOJ). 

Affidavit of Publication 

__---'C'-"""1;....;;(..:.....(eevl-=.,;;,----'--_+t'-O-_·'---(_K---30...-	 "being duly sworn, state as follows: 

1.	 I am the designated agent, under the provisions and for the purposes of, Section 31-04-06, 

NDCC, for the newspapers listed on the attached exhibits. 

2.	 The newspapers listed on the exhibits published the advertisement of: 

O'') ~h IY?V~e0-1 As, ~Hl.Ltio" (~c)I	 _ 

2 time(s) as required by law or ordinance. 

3. All ofthe listed newspapers are legal newspapers in the State of North Dakota and, under the 

provisions of Section 46-05-01, NDCC, are qualified to publish any public notice or any matter 

required by law or ordinance to be printed or pUblished in a newspaper in North Dakota. 

State of u1I() 

County of	 Bug i?/9J-t . Subscribed and sworn to before me this /1fIL day of hr 20!Ji. 

.iudd-. 

LINDA J. JUDD 

Notary Public
 

State of North Dakota
 

My Commission Expires JUly 9, 2014
 
Concert 

Friday, Sept. 5, 20( 

8:00 p.m. 

LaMoure County Memo 

Park AUditorium 

Grand Rapids, ND 

Admission: $10 at the d. 

REQUEST FORBI·D~

Zion lutheran Church 

of Ashley is.advertising for bids 

to replace the existing /

church heating. system~' . 

Call 701-288-3062 ABBREVIATED NOnCE 

OF INTENT TO AMEND· 

ADMfNISTRATIVE RULES 

relating to AirPoliution Control. 

North Dakota 

Department 

of Health 

will hold a pUblic hearing to 

address proposed changes to the 

N.D. Admin. Code Article 33-15 and 

the state Implementation Plan 

(SIP) for the control of air pollutio~.

4th Floor Conference Rm. 

Gold Seal Center 

918 E. Divide Ave. 

Bismarck, ND 

Tues., Oct 7, 2008 

9:00 a.m. CDT 

A copy ofthe proposed rules and 

SIP revisions may be viewed at the 

Department's website' at: 

www.he-alth.state.nd.us/EHS/ 

PublicNotices'.aspx. A copy of the 

...pt~posedrules.and SIP revisions 

.may be obtained by writing tei the 

. North Dakota Department of Hea~h,

Division ofAir Qualijy; 918 E. Divide 

Ave., 2nd Floor, Bismarck, NO. 

. 58501-1947 orcalting (701) 328­

5188. Written comments may be. 

submitted to the above-addressfrom 

September 15, 2008 thrQ.ugh 

0cl0ber18, 2008./fyouplan to attend 

the hearing and will need special 

facilities or assistance relating to a 

disability, please contact' the 

Department of Health at the above 

telephone number or address at 

least seven days prior to the hearing. 

Beef Barbecue Supper • 5:00 p.m.· Ad 

TICKETS AVAILABLE FROM: ELLENDALE· STARION FIN' 

- DAKOTA PLAINS CREDIT UNION; KULM • TASTY TR~

MEAT MARKET; WHBHS DIRECTOJ(~j

AND ON SITE ON SEPT. 7 • Advance Tiq are en 

• Tues., Sept. 2 - Hot dogs, baked beans, 

nachos, fruit, cinnamon roll 

• Wed.• Sept. 3 - Spaghetti w/meat sauce, garlic 

toast, green beans. fruit 

Whitestone Hill Battlefield State Historical Site 

'su~day Program, September 7, 200&;/~;3"Q'P'J!l~ t::.p·.·:.··z,:.,:.• 

• Dean Podoll - Member of Civil War Roundtable ofOmalia~N . . - ;:::::::::::~:;::::::t-::::~:~;,: .;::::::::;.:

"The 2nd NebraskaCaYalry & the Battle of .....,........ 

• Music: "From the Prairie to the Bunkhouse" fea 

the Larsen Brothers & "The 011 five & Dime I. cheese sticks. 

v, crunchy cranberry 

:h Menu for the 

~mber 3 is as foltacos, vegetable, 

;heese, seasoned 

w/"'-"'t sauce, 

} 

ik w/onions and 

IS, fruit cocktail 

<ing w/wheat biscuit, 

perfection salad 

mu for August 27 ­

Dated this 13th day of August, 2008. 

Terry l. O'CIair', P.E. 

Director,. DiVision of Air Qua 

EARLY
 

DEADLINE
 

for the 

. 

CHUCK SUCHY 

SongwliterfFarmerlStory1 

for specs and information.. Bids will be opened September 2,2008.. ,The congregation has theright10· 

acceptorreject anvorallbids. 

ABBREVIATED NOTICE ABBREVIATED NOll 

OFINTENT TO AMEND OF INTENT TOAM.E 

AOMINISTRATIVE RULES· ADMINISTRATIVE RU 

relating to TemporaryAssistance relating to TemporaryAssist 

for NeedyFamilies Program. for NeedyFamiliesProgral 

North Dakota North Dakot: 

Department Department 

ofHuman Services ofHuman Servi 

will hold a public hearing to address will hold apublic hea~ng to ad 

proposed changes to the N.D. proposed changes to the 

Admin. Code Chapter 75-02-01.2. Admin. Code Chapler~.(

Pioneer Room, Rm. G-15 PioneerRoom;Rnt t 

Ground Floor Ground·FloorJudicial Wing Judicial YVing 

State Capitol, Bismarck State Capitol, Bismi 

Mon., Sept. 22, 2008 Mon., Sept. 22,20 

3:30 p.lli. CT 3:30p.m.CT 

A copy of the proposed rules are A exipy of the proposed rule 

available for review at county social avaiialje for reyiew at county , 

services offices and human service services oflices and human 51 

centers. Copies of the proposed centers. Copies of the pro~

rules and the regulatory analysis rules and the regulatory an; 

lating to these rules may be relating to these rules me; 

requested by telephoning (701 ) 328­ req~ bytelephonitlg (701. 

2311. I/Ihitten or oral data. views, or 2311. 'Millen or oral data, vie\ 

arguments may be entered at the arguments may be entered i 

hearing or sent to: Rules hearing or sent to: F 

Administrator, North Dakota Administrator, North Dc 

Department of. Human Services, Department of Human Sen 

Slate Gaptol-Judicial'Mng, 600 East sate Gaptol-JudiciaIVtAng, ro: 

Boulevard Ave., Dept 325, Boulevard Ave., Dept. 

BiSmarck, NO 585Q5..025O, and inust Bismarck, ND 585CED250, and 

be received no later than 5:00 p.rn. be received no later than 5:OC .....n r),..+,...~,.'" ')('V')Q If u .............,,-. .....
 

Ie. Court plan. 

ed this 29th day of July, A copy of the proposed 

plans is available' for review in 

Deloris Diegel the office at the above address. 

1ey A. Gross .Any person interested may 

Imeyfor Estate . appear at the· hearing and be 

t publication on the 20th . heard. 

August, 2008, with sub­


nl p~ations on Ming Elhard.
 

t 21 September 3, Executive Director
 

NOTICE OF REGULAR 

PUBLIC NOTICE MONTHLY MEETING OF THE 

'OTICE OF HEARING MCINTOSH COUNTY 

nCINTOSH ~OUNTY COMMISSION 

DUSING AUTHORITY The regular monthly meeting 

of the Mcintosh Courity 

ce is hereby given that Commissioners will be 

:Intosh COl!nty Housing Thursday, September 4, 2008, 

ity will conduct a public. at 8:00 a.m. in the commission 

1 irithe office at th.e room at the courthouse. the 

courthouse located 112 Water Resource Board will 

Street at Ashley, NO on meet ·on Thursday, September 

nber 18th, 2008 from 4, 200Blit 9:00 a.m. in the 

1M to 12:00 Noon to dis-courthouse, . . 

1195 year'and the'annual .. 

.,

NnNN& North Dakota Newspaper Association 

1435 Interstate Loop 

Bismarck, ND 58503-0567 

Ph (701) 223-6397' Fax (701) 223-8185 

INVOICE vt\l't {5 

Order 25403-08091NDO Invoice # 420 ""'''''''''' 17, 2008 ~/f Attn: TERRYL. O'CLAIR 

ND HEALTH DEPARTMENT 

600 E BOULEVARD AVE. 

DEPT. 301 

BISMARCK, ND 58505-0200 

Voice: 328-4619 Fax: 328-4727 

Advertiser: Division ofAir Quality 

P.O.#: 

Amount Due $3,359.70 

Amount Paid 

Please detach and return this portion with your payment 

Page Run Date 

08/27/08 

09/03/08 

08/21/08 

08/28/08 

08122/08 

08129/08 

08/26/08 

09/02108 

08127/08 

09/03/08 

08122108 

08129/08 

08123/08 

08130/08 

08125/08 

09/01/08 
Divi3ion ofAir Quality Invoice # 25403-08091 NDO-420 

Ad Size Rate Type Rate Total Discount (%) Caption Page Run Date 

,,"""""" COUNTY 

Carson Press (Elgin NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 

Carson Press (Elgin NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 09103108 

Cavalier Chronicle (Cavalier NO) 

5;50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 

Cavalier Chronicle (Cavalier NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/03/08 

Center Republican (Hazen NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08121/08 

Center Republican (Hazen NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08128108 

Cooperstown Griggs County Courier (Cooperstown NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08122/08 

Cooperstown Griggs County Courier (Cooperstown NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129/08 

Crosby The Journal (Crosby NO) 

5,50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 

Crosby The Journal (Crosby NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/03/08 

Oevils Lake Oaily Journal (Oevils Lake NO) 

5.50 SPR1 7.14 39.27 0.00 Air Pollution 08125108 

,<;IiI~

Oevils Lake Oally Journal (Oevils Lake NO) 

5.50 SPR1 7.14 39.27 0.00 Air Pollution 09101/08 

Oickinson Press (Olcklnson NO) 

5.50 SPR1 7.14 39.28 0.00 Air Pollution 08122/08 

Oickinson Press (DIckinson NO) 

5.50 SPR1 7.14 39.28 0.00 Air Pollution 08129/08 

Elgin Grant County News (Elgin NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 

Elgin Grant County News (Elgin NO) 

5.50 SPR1 5.25 28.88 0;00 Air Pollution 09/03/08 

Ellendale Oickey Co Leader (Ellendale NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08121/08 

Ellendale Oickey CoLeader (Ellendale NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08128108 

Fargo, The Forum (Fargo NO) 

5.50 SPR1 10.51 57.81 0.00 Air Pollution 08125/08 

Fargo, The Forum (Fargo NO) 

5.50 SPR1 10.51 57.81 0.00 Air POllution 09/01/08 

Finley Steele County Press (Finley NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08122/08 

Finley Steele County Press (Finley NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129108 

Garrison McLean Co Independent (Garrison NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08121/08 

,,,.~

Garrison McLean Co Independent (Garrison NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08128108 

Grafton· Walsh County Record (Grafton NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 
Divis~on of Air Quality Invoice # 25403-08091NDO-420 

Ad Size Rate Type Rate Total Discount ("Ai) Caption Page Run Date 

COUNTY 

Grafton * Walsh County Record (Grafton NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/03/08 

Grand Forks Herald (Grand Forks NO) 

5.50 SPR1 10.51 57.81 0.00 Air Pollution 08123108 

Grand Forks Herald (Grand Forks NO) 

5.50 SPR1 10.51 57.81 0.00 Air Pollution 08130/08 

Harvey The Herald-Press (Harvey NO) 

5.50 SPRl 5.25 28.88 0.00 Air Pollution 08123(08 

Harvey The Herald-Press (Harvey NO) 

5.50 SPRl 5.25 28.88 0.00 Air Pollution 08130/08 

Hazen Star (Hazen NO) 

5.50 SPRl 5.25 28.88 0.00· Air Pollution 08121/08 

Hazen Star (Hazen NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08128108 

Hettinger Adams Co Record (Hettinger NO) 

.5.50 SPR1 5.25 28.88 0.00 Air Pollution 08122108 

Hettinger Adams Co Record (Hettinger NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129108 

Jamestown Sun (Jamestown NO) 

5.50 SPR1 7.14 39.27 0.00 Air Pollution 08125/08 

Jamestown Sun (Jamestown NO) 

5.50 SPR1 7.14 39.27 0.00 Air Pollution 09/01/08 

Killdeer Dunn County Herald (Killdeer NO) 

5:50 SPR1 5.25 28.88 0.00 Air Pollution 08122108 

Killdeer Dunn County Herald (Killdeer NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129/08 

Lakota American (Lakota NO) 

5.50 SPRl 5.25 28.88 0.00 Air Pollution 08127/08 

Lakota American (Lakota NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/03/08 

LaMoure Chronicle (LaMoure NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08127/08 

LaMoure Chronicle (LaMoure NO) 

5.50 SPRl . 5.25 28.88 0.00 Air Pollution 09/03/08 

Langdon Cavalier Co Republican (Langdon NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08125/08 

Langdon Cavalier Co Republican (Langdon NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/01/08 

Linton Emmons County Record (Linton NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08121108 

Linton Emmons County Record (Linton NO) 

5.50 SPRl 5.25 28.88 0.00 Air Pollution 08128108 

Lisbon Ransom County Gazette (Lisbon NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08125/08 

Lisbon Ransom County Gazette (Lisbon NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 09/01/08 

Mandan News (Bismarck NO) .­ 5.50 SPR1 5.25 28.88 0.00 Air Pollution 08122108 

Mandan News (Bismarck NO) 

5.50 SPR1 5.25 28.88 0.00 Air Pollution 08129/08 
Division of Air Quality Invoice # 25403-08091 NDO-420 

Ad Size Rate Type Rate Total Discount ("/0) 

.H."....., COUNTY
 

Mayville· Traill County Tribune (Mayville NO)
 

5.50 $PRI 5.25 28.88 0.00 

Mayville • Traill County Tribune (Mayville NO) 

5.50 SPRI 5.25 28.88 0.00 

McClusky Gazette (McClusky NO) 

5.50 SPRI 5.25 28.88 0.00 

McClusky Gazette (McClusky NO) 

5.50 SPRI 5.25 28.88 0.00 

Medora Billings County Pioneer (Beach NO) 

5.50 SPRI 5.25 28.88 0.00 

Medora Billings County Pioneer (Beach NO) 

5.50 SPRI 5.25 28.88 0.00 

Milnor Sargent County Teller (Milnor NO) 

5.50 SPRI 5.25 28.88 0.00 

Milnor Sargent County Teller (Milnor NO) 

5.50 SPRI 5.25 28.88 0.00 

Minnewaukan Benson Co Farmers Press (Minnewaukan NO) 

5.50 SPRI 5.25 28.88 0.00 

Minnewaukan Benson Co Farmers Press (Minnewaukan NO) 

5.50 SPRI 5.25 28.88 0.00 

Minot Dally News (Minot NO) 

5.50 SPRI 10.51 57.81 0.00 

Minot Daily News (Minot NO) 

.........-..
 5.50 SPRI 10.51 57.81 0.00 

Mohilll Renville County Farmer (Mohall NO) 

5.50 SPR1 5.25 28.88 0.00 

Mohall Renville County Farmer (Mohall NO) 

5.50 SPRI 5.25 28.88 0.00 

Napoleon Homestead (Napoleon NO) 

5.50 SPRI 5.25 28.88 0.00 

Napoleon Homestead (Napoleon NO) 

5.50 SPRI 5.25 28.88 0.00 

New England The Herald (New England NO) 

5.50 SPRI 5.25 28.88 0.00 

New England The Herald (New England NO) 

5.50 SPRI 5.25 28.88 0.00 

New Rockford Transcript (New Rockford NO) 

5.50 SPR1 5.25 28.88 0.00 

New Rockford Transcript (New Rockford NO) 

5.50 SPR1 5.25 28.88 0.00 

Rolla Turtle Mountain Star (Rolla NO) 

5.50 SPR1 5.25 28.88 0.00 

Rolla Turtle Mountain Star (Rolla NO) 

5.50 SPR1 5.25 28.88 0.00 

Rugby Pierce County Tribune (Rugby NO) 

5.50 SPRI 5.25 28.88 0.00 

Rugby Pierce County Tribune (Rugby NO) 

5.50 SPRI 5.25 28.88 0.00 

lanley Mountrail Co Promoter (Stanley NO) 

5.50 SPRI 5.25 28.88 0.00 

Caption Page Run Date 

Nr Pollution 08123/08 

Air Pollution 08130/08 

Nr Pollution 08121/08 

Air Pollution 08128108 

Nr Pollution 08121/08 

Air Pollution 08128108 

Air Pollution 08122/08 

Nr Pollution 08129/08 

Air Pollution 08127/08 

Air Pollution 09/03/08 

Air Pollution 08125/08 

Nr Pollution 09/01/08 

Air Pollution 08127/08 

Nr Pollution 09/03/08 

Air Pollution 08127/08 

Air Pollution 09/03/08 

Air Pollution 08122/08 

Air Pollution 08/29/08 

Air Pollution 08125/08 

Air Pollution 09/01/08 

Nr Pollution 08125/08 

Nr Pollution 09/01/08 

Air Pollution 08123/08 

Air Pollution 08130/08 

Air Pollution 08/27/08 
Division ofAir Quality Invoice # 25403-08091NDO-420 

Ad Size Rate Type Rate Total Discount ('/0) Caption Page Run Date 

".~

,~

Stanley Mountrail Co Promoter (Stanley NO) 

5.50 SPRl 5.25 

Steele Ozone & Kidder Co. Press (Steele NO) 

5.50 SPRl 5.25 

Steele Ozone & Kidder Co. Press (Steele NO) 

5.50 SPRl 5.25 

Towner Mouse River Journal (Towner NO) 

5.50 SPR1 5.25 

Towner Mouse River Journal (Towner NO) 

5.50 SPR1 5.25 

Valley City Times-Record (Valley City NO) 

5.50 SPR1 7.14 

Valley City TImes-Record (Valley City NO) 

5.50 SPR1 7.14 

Wahpeton Daily News (Wahpeton NO) 

5.50 SPR1 7.14 

Wahpeton Daily News (Wahpeton NO) 

5.50 SPR1 7.14 

Watford CIty McKenzie Co Farmer (Watford City NO) 

5.50 SPR1 5.25 

Watford City McKenzie Co Farmer (Watford City NO) 

5.50 SPR1 5.25 

Williston Herald (Williston NO) 

5.50 SPR1 7.14 

Williston Herald (Williston NO) 

5.50 SPR1 7.14 

COUNTY 

28.88 0.00 

28.88 0.00 

28.88 0.00 

28.88 0.00 

28.88 0.00 

39.27 0.00 

39.27 0.00 

39.28 0.00 

39.28 0.00 

28.88 0.00 

28.88 0.00 

39.28 0.00 

39.28 0.00 

Air Pollution 

Air Pollution 

Air Pollution 

Air Pollution 

AirPollulion 

Air Pollution 

Air Pollution 

Air Pollution 

Air Pollution 

Air Poilulion 

Air Pollution 

Air Pollution 

Air Poilulion 

09/03108 

08127/08 

09/03108 

08127/08 

09/03108 

08125108 

09/02108 

08122108 

08129108 

08127/08 

09/03108 

08/25108 

09/02108 

Gross Advertising 3,359.70 Total Mise 0.00 Amount Paid 0.00 

Agency Discount Tax 0.00 Adjustments 0.00 

Other Discount 0.00 Total Billed 

Unbilled 

3,359.70 

0.00 

Payment Date 

Service Charge 0.00 Balance Due 3,359.70

Your payment Is due upon receipt. Thank you in advance for your prompt payment! 

REGISTRATION 

JD/7/0~

,EASE PRINT 

CHECK HERE 

~AME ADDRESS REPRESENTING TO TESTIFY

('I'D DIf ;VI> 0II 

x 

/ I 

Public Hearing
 

Air Pollution Control Rules
 

October 7, 2008
 

9:00 a.m. CDT - Gold Seal Center 

I am David Schaaf and I will be acting as hearing officer for this 

public hearing. It is now 9:00 am on October 7~, in the Gold Seal 

Center so at this time, I open this hearing. 

This public hearing has been called for the purpose of allowing all 

interested individuals an opportunity to submit information concerning 

proposed amendments to N.D. Administrative Code Article 33-15 and 

revisions to the State Implementation Plan for the control of air 

pollution. 

Information gathered at this hearing will be transmitted to the Health 

Department for its deliberation and final decision. The Health 

Department will not be responding to comments at this hearing. The 

comments received at this hearing will be considered with any written 

comments that are received and the Health Department will present its 

consideration of all the comments in writing. You may request a copy 

of the written response and one will be provided to you. 

This hearing is being taped and we ask everyone to use the podium so 

..- that the tape will be of good quali ty for transcribing purposes. 

Please identify yourself for the record before you speak. 

Everyone present will be given the opportunity to speak. If you have 

a prepared statement, a written copy of your statement is appreciated 

and will be helpful. 

A registration sheet has been placed next to the doors. I ask that 

everyone present please sign this sheet before they leave. 

At this point, I calIon Tom Bachman of the Heal th Department to 

provide a summary of the proposed changes. 

Tom Bachman presents the revisions to the Air Pollution Control 

Rules affect several chapters including: 

Chapter 33 -15-01 General Provisions: Wi thin this chapter new 

definitions are proposed for "excess emissions" and "PM2 . S "' 

Modifications were made to the existing definition of "air 

contaminant" and "volatile organic compounds." Subsection 1 of 

Section 13 was modified by adding. a paragraph indicating excess 

emissions are not authorized. A new subdivision was added to 

specify the criteria necessary to show that a mal function was 

unavoidable. The subdivision also allows the Department discretion 

whether to take enforcement action when a malfunction is 

unavoidable. The requirements for alternative monitoring in the 

event of failure of a continuous emissions monitoring system were 

also amended. 
In Chapter 33-15-02, Ambient Air Quality Standards, the existing 

standards for PM10 and ozone are being am€nded to match the current 

Federal standards and new standards for PM2 . 5 are being added which 

are also the same as the Federal standards. 

The proposed change to Chapter 33-15-05, Emissions of Particulate 

Matter Restricted, deletes requirements for existing trash 

incinerators when a malfunction occurs. 

In Chapter 33-15-12, Standards of Performance for New Stationary 

Sources, the Department proposes deletion of the mercury 

requirements in Subpart Da and Subpart HHHH since these requirements 

were vacated by the Circuit Court of Appeals for the· District of 

Columbia. Subpart KKKK for combustion turbines will be added. 

The only change to Chapter 33-15-13, Emission Standards for 

Hazardous Air pollutants, changes the date for incorporation by 

reference of the various subparts. 

The proposed changes to Chapter 33-15-14, Designated Air Contaminant 

Sources, Permit to Construct,Minor Permit to Operate, Title V 

Permit to Operate, limit the designated source category for sources 

subject to MACT standards to only those that are major sources. 

Other changes are administrative updates. 

Chapter 33-15-15, Prevention of Significant Deterioration, is being 

updated to incorporate changes made by EPA through August 1, 2007. 

The changes to Chapter 33-15-21, Acid Rain Program, updates the 

rules to be the same as EPA's rules as of March 1, 2008. 

In Chapter 33-15-22, Emission Standards for Hazardous Air Pollutants 

for Source Categories, the date for incorporation by reference is 

updated to March 1, 2008, and Subpart DDDDD and JJJJJ are being 

deleted since the D.C. Circuit Court vacated the rules. In 

addition, it is being clarified that only the requirements for major 

sources under Subpart HH are being adopted. 

The final chapter is 33-15-23, Fees. An exemption is provided from 

the minor source Permit to Operate fees for local governments. For 

Title V fees, the rule is modified to indicate that the fees are due 

60 days after the date of the billing letter. 

This concludes the summary of the proposed rule change. 

David Schaaf opened the hearing for public comment. 

Ken Wangler with MDU stated that it may be helpful if the Department 

would provide some examples of what might be inadequate maintenance 

with regard to 33-15-01-13.2. To help industry understand what is 

2
 
expected or what things might be unacceptable if a malfunction would 

to occur, the Department should provide guidance on inadequate 

maintenance or define what inadequate maintenance might be. Ken also 

talked about a memorandum from the Department dated February 10, 2006. 

On page 4 the memorandum states that malfunctions are not considered 

violations. Ken stated that memorandum may contradict this new rule 

change and suggested that the Department take a look at that. 

Ken stated that in 40 CFR 52.21(r) (6) the reference to the 

Department's regulation indicates the word "reasonable" is deleted. 

Ken stated that he thought he looked at a current copy of that 

particular section of the Federal Regulation and agreed with 

circumstances where there is a reasonable possibility. He stated that 

if "reasonable" got deleted out of that section it appears that it 

does correlate to the Federal Regulation. 

David Schaaf asked if anyone else would like to provide testimony or 

comments. Hearing no requests for further co'mments David thanked 

everyone for coming. All of the information gathered at this hearing 

will be provided to the Health Department, which is the decisionmaking body. 

The record will be held open for written comment through October 18. 

2008. 

At this point. I will close the hearing on the proposed amendments to 

the North Dakota Administrative Code, Article 33-15 and revisions to 

the State Implementation Plan for the control of air pollution. ;es:271Y~~ed,

Terry L. O/Clair
 

Administrative Officer
 

TLO:saj 

3
 

ENVIRONMENTAL HEALTH SECTIOI\I 

Gold Seal Center, 918 E. Divide Ave. 

NORTH DAKOTA Bismarck, ND 58501-1947 

DEPARTMENT oj HEALTH 701.328.5200 (fax) 

www.ndhealth.gov 

Certification of Public Hearing 

Re: Implementation Plan for the Control of Air Pollution 

for the State of North Dakota 

Certification: 

The undersigned certifies that the public hearing held by the North Dakota 

Department of Health on October 7, 2008, for the purpose of receiving and 

considering testimony and evidence bearing on the proposed revisions to the 

Implementation Plan for the Control of Air Pollution for the State of North Dakota 

was held in accordance with the notice required by Section 51.102 Public Hearings 

of the Requirements for Preparation, Adoption, and Submittal of Implementation 

Plans, Code of Federal Regulations, Title 40, Chapter I, Subchapter C, Part 51. 

Date: October 7, 2008 

Affidavit: 

State of North Dakota 

County of Burleigh 

On the 7th day of October 2008 before me personally appeared Tom Bachman, who 

having been duly sworn, stated that to the best of his knowledge and belief the 

statements in the foregoing certification are true. 

Subscribed and sworn to before me 

Sherri A. Jahraus 

Type, Print or Stamp Name 

Notary Public County 

North ...~~~""""""'ll.oIl~l!taritI"""""""" My CO ~~J~~~AUS NOta rylFu0Iir:-----e---­

State of North Dakota 

My Commission Expires Oct. 18,2008 

Environmental Health Division of Division of Division of Division of 

Section Chiefs Office Air Quality Municipal Facilities Waste Management Water Quality 

701.328.5150 701.328.5188 701.328.5211 701.328.5166 701.328.5210 

Printed on recycled paper 

Response to Public Comments
 

on
 

Proposed Revisions
 

to
 

The Air Pollution Control Rules
 

of the State of North Dakota
 

Public Comment Period
 

September 15 - October 18, 2008
 

North Dakota Department of Health
 

Division of Air Quality 

2 nd 918 E. Divide Avenue, Floor 

Bismarck, ND 58501-1947 
Table of Contents 

Title 

List	 of Acronyms . 

Summary of Comments and Responses 

1.	 Oral Comments. 

2.	 Written Comments on Rules 

3.	 Written Comments on State Implementation 

Plan Revisions 

Tesoro Refining and Marketing Co. Comments 

Plains Justice Comments 

Environmental Protection Agency Comments 

and Department's Response 

Martin R. Schock Comments 

. 1 

2 
List of Acronyms 

EPA Environmental Protection Agency 

NAAQS National Ambient Air Quality Standards 

MDU Montana-Dakota Utilities 

PSD Prevention of Significant Deterioration 

SIP State Implementation Plan 

SSM Startup/Shutdown/Malfunction 

1
 
Summary of Oral Comments 

There was only one person who provided oral comments at the public 

hearing on October 7, 2008. 

No. Commentor 

Section of Rules 

Affected Comment 

Department Response 

1 MDU 33-15-01-13.2.c(2) MDU indicated it would be 

helpful if the Department 

provided guidance on 

inadequate maintenance or 

unacceptable maintenance. 

The Department cannot 

provide guidance on 

maintenance for every type 

of source regulated under 

the Air Pollution Control 

Rules. The Department will 

base its determination of 

whether maintenance was 

adequate by looking at 

standard maintenance for the 

industry or source type in 

question. 

2 MDU 33-15-01-13.2.c(2) MDU indicated that the 

revised rule may conflict 

with a February 10, 2006 

memorandum on malfunction 

and the memorandum be 

revised accordingly. 

The Department has 

the memorandum and 

determined that no 

are necessary. 

reviewed 

changes 

3 MDU 33-15-15-01.2 

(40 CFR 52.21(r) (6)) 

MDU believes the word 

"reasonable" should not be 

deleted from the section 

of the Federal rules that 

are being incorporated by 

reference. 

This section refers to 

keeping records and 

reporting when a 

modification could have a 

"reasonable" possibility of 

being a major modification. 

The use of the word 

"reasonable" was remanded 

back to EPA by the Court of 

Appeals for the D.C. Circuit 

(2005, New York v. EPA 413 

F. 3d3, 82-9). EPA 

subsequently finalized a 

rule to address the D.C. 

Circuit Court's concerns 

(F.R. Vol. 72, No. 245, Dec. 

21, 2007). However, this 

rule was challenged by the 

state of New Jersey on 

February 19, 2008. Until 

all legal challenges are 

exhausted on this rule, the 

Department believes it is 

prudent to delete the word 

"reasonable". When all 

legal challenges to EPA's 

rule defining "reasonable" 

are exhausted, the 

Department will adopt the 

EPA rule. 

2
 
Summary of Written Comments and Responses 

No. Commentor 

Section of 

Affected 

Rules 

Comment Department Response 

1. Tesoro Refining 

& Marketing Co. 

33-15-01-13.2.c(2) Tesoro suggested that 

words "or adequate 

design" be removed. 

the Paragraph 33-15-01-13.2(c} (2) 

was revised to eliminate 

"adequate design" and state 

"The excess emissions could 

not have been avoided by 

better operation and 

maintenance, did not stem 

from an activity or event 

that could have been foreseen 

and avoided, or planned for." 

2. Tesoro Refining 

& Marketing Co. 

33-15-01-13 .2 Tesoro suggested revising 

this section with 

simplified language taken 

from their Consent Decree 

which states: malfunction 

is defined as "any 

sudden, infrequent, and 

not reasonably 

preventable failure of 

air pollution control 

equipment, process 

equipment, or a process 

to operate in a. normal or 

usual manner. Failures 

that are caused in part 

by poor maintenance or 

careless operations are 

not malfunctions." 

The Department has added 

language to 33-15-01-13.c(1) 

to address the sudden and 

unavoidable failure of 

technology (i.e. air 

pollution control or process 

equipment) as suggested by 

Tesoro. 

3. Plains Justice 33-15-15-01.2 Plains Justice is asking 

the Department to fully 

implement the PM,., 

requirements instead of 

using PM" as a surrogate. 

The comment does not affect 

the language in the rule that 

is being adopted. Plains 

Justice's comment is in 

relation to the 

implementation of the rule. 

EPA has indicated that PM" 

can be used as a surrogate 

for PM,., unti 1 July 15, 2011 

or urrtil the Department 

revises it rules to include 

PM,.,. The Department 

believes that emission 

factors, stack testing 

methods and modeling 

techniques need to be refined 

before implementing the PM,., 

requirements. The Department 

has not adopted the PM,., 

requirements published in the 

Federal Register on May 16, 

2008. When the Department 

adopts the rule, we will 

fully implement the PM,., 

requirements. 

3
 
No. Commentor 

4. U.S. EPA 

(No. 

U.S. 

II 

5. EPA

(No. 

U.S. 

2 ) 

6. EPA

(No. 

U.S. 

3 ) 

7. EPA

(No. 

U.S. 

4 ) 

8. EPA

(No. 

U.S. 

5 ) 

9. EPA

(No. 

U.S. 

6 ) 

10. EPA

(No. 

U.S. 

7) 

ll. EPA

(No. 

U.S. 

8) 

12. EPA

(No. 9 ) 

Section of Rules 

Affected 

33-15-01-04. 10 

33-l5-0l-l3.2Ic) 

33-15-01-13.3 

33-15-02-07.4 

33-l5-05-0l.2{a) (1) 

33-15-20-04.6 

33-15-01-14.2 

33-15-01-07 

33-15-02 

Table 1 

33-l5-05-03.2Id) 

33-l5-05-0l.2(a) (1) 

33-15-05 

Comment 

EPA suggests the 

following be added to the 

definition of excess 

emissions, "or actions 

inconsistent with an 

applicable requirement 

specified in this article 

or a permit issued 

pursuant to this 

article" . 

EPA suggested that we 

clarify the language and 

shorten the time for the 

written report claiming a 

malfunction was 

unavoidable. 

EPA believes we are 

incorporating a 

"Director's discretion" 

to replace another one. 

EPA identified additional 

sections of the rules 

they believe need 

revision to eliminate a 

"director's discretion". 

EPA suggested removing 

the "Director's 

discretion" in this 

section. 

EPA indicated this 

section should be 

removed. 

EPA asked the Department 

to clarify if it was 

adopting the 0.08 pm or 

0.075 ppm standard. 

EPA identified additional 

sections of the rules 

they believe need 

revision due to a 

"director's discretion" . 

EPA indicated that 

sections identified as 

needing revisions due to 

"Director's discretion" 

should not be submitted 

with the revised rules 

for final approval. 

4 

Department Response 

Based on discussions with 

EPA, the def ini tion was 

revised to: "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 permi t 

issued pursuant to this 

article." 

The rule was revised to 

require quarterly reporting. 

The affected language was 

replaced with "The owner or 

operator of a source that 

uses an alternative method 

shall have the burden of 

demonstrating that the 

alternative method is 

accurate. " 

These sections of the rules 

were not proposed for 

revision. The Department 

will evaluate these sections 

and make any necessary 

changes at a later date. 

The proposed revision has 

been withdrawn. 

This section of the rules was 

not proposed for revision. 

The Department will evaluate 

the rule and make any 

necessary changes at a later 

date. 

The Department has proposed 

the 0.075 standard for 

adoption as indicated in 

Table l. The rule was 

revised to correct the 

inconsistency. 

These sections of the rules 

were not proposed for 

revision. The Department 

will evaluate these sections 

and make any necessary 

changes at a later date. 

Agreed. 
No. Commentor 

13. U.S. EPA 

(No. 

U.S. 

10) 

14. EPA

(No. 

U.S. 

ll) 

15. EPA

(No. 

U.S. 

12) 

16. EPA

(No. 

U.S. 

13) 

17. EPA

(No. 

U.S. 

14) 

18. EPA

(No. 14) 

Section of Rules 

Affected 

33-15-12 

33-15-12 

Appendices A-I 

33-15-14-01.14 

33-15-14-02.6.c 

33-15-14-06.1.c 

33-15-14-02.13.n. 

33-15-14-02.19 & 

33-14-14-03.16 

Comment 

EPA asked that the 

Department confirm that 

Subparts Eb, L, M, N, Na, 

P, Q, R, S, BB, EEEE, 

IIlI and JJJJ will not be 

adopted. 

EPA pointed out that the 

appendices may have been 

inadvertently marked for 

de1"etion. 

EPA indicated the change 

will require a 

demonstration that the 

NAAQS and PSD increments 

will not be adversely 

affected. 

EPA indicated they could 

not approve it because of 

a lack of Federal rule on 

approvability of the 

entire subsection. 

EPA pointed out that the 

revision to this 

subdivision should ndt be 

submitted as a SIP 

revision. 

EPA identified these 

rules as containing a 

"Director's discretion" 

that should be removed. 

Department Response 

The Department is not 

intending to adopt these 

subparts and will confirm 

this with the EPA. 

The deletion was not intended 

and the appendices were added 

back into the chapter. 

The change only affects 

sources of hazardous air 

pollutants and only the 

permitting requirements for 

those sources. It does not 

affect any emission 

limitations. Since there are 

no NAAQS or PSD increments 

for hazardous air pollution, 

and no relaxation of emission 

limi ts, the demonstration is 

not required. This has been 

verified with EPA. 

The Department understands 

that until EPA finishes 

rulemaking, the housekeeping 

change will not be approved. 

Agreed. 

These sections were not 

proposed for revision. The 

Department will evaluate the 

referenced sections and make 

any necessary changes at a 

later date. 

5
 
3. State Implementation Plan Comments (Not Rule Related) 

No. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

Commentor 

Martin Schock 

U.S. 

(No. 

U.S. 

(No. 

EPA 

17) 

EPA 

18) 

U.S. 

(No. 

EPA 

19 ) 

U.S. 

(No. 

EPA 

20) 

U.S. 

(No. 

EPA 

21) 

U.S. 

(No. 

EPA 

22) 

U.S. 

(No. 

EPA 

23) 

U.S. 

(No. 

EPA 

24) 

U.S. 

(No. 

EPA 

24) 

Chapter or 

Section of SIP 

Affected 

7.7 

7.8 

7.8 

7.8.1 

6.8 

6.11.1 

6.11.2 

6.11. 3 

5 

9 

Comment 

Mr. Schock recommended 

deleting the second paragraph 

to eliminate any conflict 

between Section 7.7 and NDAC 

33-15-14-02.4. 

EPA suggested adding the word 

adequate to the second line. 

EPA suggested replacing the 

word "and" with "or" in the 

second paragraph, Line 3. 

EPA suggested adding the date 

"1997" to the 

subsection. 

EPA suggested 

be updated to 

58.10. 

title of the 

that Section 6.8 

reference 40 CFR 

EPA noted some inconsistencies 

in the naming the monitoring 

sites for PM", PM,., and 

ozone. 

EPA indicated that PM,., should 

be added to the list of 

pollutants for emergency 

episode provisions. Also, the 

Department should establish 

priority levels and 

contingency plans under 40 CFR 

51.150. 

EPA could not find the section 

of the SIP that addresses 

notification of the public of 

exceedances of the NAAQS. 

EPA could not find the section 

of the SIP which requires the 

State to provide for 

consultation and participation 

in SIP development by 

political subdivisions 

affected by the SIP. 

EPA wants the Department to 

clarify that this chapter is 

replaced in its entirety. 

Department Response 

Agreed 

Agreed. 

Agreed. 

Agreed. 

Agreed. 

Agreed - the names have been 

changed to be consistent. 

EPA has not adopted emergency 

episode levels for PM" . 

Since the Department cannot 

be more stringent than 

Federal requirements, we 

cannot adopt limits for PM,., . 

The notification requirements 

are found in Section 6.9. 

These requirements are 

included in Chapter 10 of the 

SIP. 

Agreed. 

6
 
October 16, 2008 

File 51.275 

•

TESORO

Tesoro Refining and Marketing Company Mr. Terry O'Clair, P.E. Northern Great Plains Region 

North Dakota Department 900 Old Red Trial Northeast of Health 

Mandan, North Dakota 58554-1589 918 East Divide Avenue 7016672400 

701 667 2448 Fax Bismarck, ND 58501-1947 

Comments on Proposed Changes to the North Dakota Air Pollution Control Rules 

Dear Mr. O'Clair: 

Thank you for the opportunity to comment on the proposed changes to the North Dakota 

Air Pollution Control Rules. Tesoro is providing comments specifically on Section 33­

15-01-13, "Shutdown and malfunction of an installation - Requirement for notification". 

Tesoro suggests that the words "or adequate design" be removed from the proposed 

changes to 33-15-01-13.2.c.(2). The proposed language currently reads: "[requires the 

facility to provide evidence that] the excess emissions could not have been avoided by 

better operation, maintenance or adequate design of the malfunctioning component." 

The EPA has already addressed what they believe constitutes an unavoidable malfunction 

via the various consent decrees, and it would be logical for the North Dakota Rules to 

align with how EPA is interpreting "malfunctions". In the BP (Tesoro) Consent Decree, 

malfunction is defined as "any sudden, infrequent, and not reasonably preventable failure 

of air pollution control equipment, process equipment, or a process to operate in a normal 

or usual manner. Failures that are caused in part by poor maintenance or careless 

operation are not malfunctions." The change suggested by Tesoro lines up with the EPA 

interpretation, and is a reasonable standard. 

Tesoro agrees with providing information about design issues in our reports / 

investigations about malfunctions, and we believe that issue is effectively addressed in 

l3-l5-01-13.2.c.(6). 

Tesoro appreciates the opportunity to participate in this rule making process. If you have 

any questions regarding Tesoro's comments, please call David Schaaf at 667-2485. 

Sin~f/~

Ronald W. Day 

Manager, Health, Safety and Environment 

DPS/sms 
www.plainsjustice.org 

October 10, 2008 

Terry O'Clair, Director
 

Air Quality Bureau
 

. North Dakota Department of Health 

9i8 E. Divide Avenue, 2nd Floor 

Bismarck, North Dakota 58501-1947 

Re: Comments to North Dakota's State Implementation Plan Revisions 

Dear Mr. O'Clair: 

Dakota Resource Council, Dacotah Chapter of Sierra Club, and Plains Justice respectfully submit 

these comments on the North Dakota Department of Health's amendments to North Dakota's 

State Implementation Plan (SIP). We urge NDDH to require information from air permit 

applicants that will enable full compliance with the New Source Review requirements for 

particulate matter less than 2.5 micrometers in diameter (PM2.;). As set forth below, the means 

exist now to model PM2.5 impacts on air quality and to set "best available control technology" 

(BACT) limits for PM2.5. Taking this step now will safeguard the health of vulnerable North 

Dakotans, such as children and the elderly, and protect the state's outstanding quality of life. 

I. PM2.5 emissions threaten North Dakota's public health 

The PM2.5 fraction of particulate matter is a greater public health concern than the coarser
 

fraction referred to as PMlO, as the smaller particles pose the "largest health risks,"! Federal
 

regulations have declared PM2.5 a causal factor in premature death, in addition to:
 

aggravation of respiratory and cardiovascular disease (as indicated 

by increased hospital admissions, emergency room visits, absences 

from school or work, and restricted activity days), changes in lung 

function and increased respiratory symptoms, as well as new 

evidence for more subtle indicators of cardiovascular health. 2 

1 EPA, "PM2.5 NAAQS Implementation," available at http://www.epa.gov/ttnnaaqs/pm/pm25_index.html; see also 

EPA Office of Air Quality Planning and Standards, "Review of the National Ambient Air Quality Standards for 

Particulate Matter: Policy Assessment of Scientific and Technical Information," Staff Paper (July 1996), V-58 to V77, available at http://www.epa.gov/tnnlnaaqs/standardslpm/s_pm_1997_sp.html (discussing health studies of fine 

versus coarse particles). 

2 Clean Air Fine Particle Implementation Rule, 72 Fed. Reg. 20,586,20,586-20,587 (April 25, 2007) (codified at 40 

c.F.R. Part 51). 

100 First Street SW, Suite 201, Cedar Rapids, IA 52404 Phone: (319) 3622120 Fax: (866) 462 3053 

P. O. Box 251, Vermillion, SD 57069 Phone: (612) 462 3053 
Page 2 of9 

EPA has also identified lung cancer deaths, infant mortality, and developmental problems (such 

as low birth weight in children) as possibly linked to PM2.5. 

3 

According to the American Academy of Pediatrics, children and infants are the most susceptible 

to PM2.5 emissions.4 Among children, there have been higher asthma-related hospitalization 

rates, more severe asthma attacks, and slowed lung function growth. 5 Children also have 

increased exposure to particulate pollution compared with adults because of higher minute 

ventilation and higher levels of physical activity. Older adults are also particularly susceptible to 

PM2.5 because of their weaker lungs and hearts. Studies suggest that serious health effects, such 

as premature mortality, are greater among older groups of individuals.6 Additionally, older 

adults are also more likely than younger ones to have preexisting respiratory and/or 

cardiovascular conditions that become aggravated with exposure to PM2.5.

7 

North Dakotans are seeing an increase in asthma diagnoses. In 2005, twelve percent of North 

Dakota children were ever diagnosed with asthma (called lifetime asthma), and eight percent11,000 children-currently have it (diagnosed within the calendar year).8 In 2004, more adult 

North Dakotans had asthma than ever before, nearly 37,000.9 Indeed, the asthma rates are 

increasing at such a rate that the North Dakota legislature identified the disease as a state 

priority, creating a special workgroup whose sole function is to improve the health of North 

Dakotans li ving with asthma. 10 . 

II. NDDH has a duty to ensure protection of North Dakota's air quality 

NDDH has a duty under the Clean Air Act and parallel state"laws and regulations to ensure the 

health of North Dakotans by directly and stringently limiting fine particle pollution. The North 

Dakota legislature, through the enactment of the Air Pollution Control Rules, declared: 

[T]he public policy of this state and the legislative intent of this 

chapter [is] 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 of 

3 National Ambient Air Quality Standards for Particulate Matter, 71 Fed. Reg. 2620,2627 (proposed Jan. 17,2006). 

4 See also American Lung Association, "Particle Pollution Fact Sheet," available at 

http://www.1ungusa.orglsitelpp.asp?c=dvLUK900E&b=50324. 

5 Id. 

6 National Ambient Air Quality Standards for Particulate Matter, 71 Fed. Reg. 2620, 2637 (proposed Jan. 17,2006). 

7 Id.
 

8 North Dakota 2005 Fact Sheet, "The Burden of Childhood Asthma," available at
 

http://www.ndhealth.gov/chronicdisease/factsheets!AsthmaInChildrenFactSheel. pdf.
 

9 North Dakota 2005 Fact Sheet, "The Burden of Asthma," available at
 

http://www.ndhealth.gov/chronicdisease/factsheets/AsthmaFactSheel.pdf.
 

10 North Dakota State Asthma Workgroup, available at http://www.ndhealth.gov/asthmal.
 
--

Page 3 of9 

this state, to foster the comfort and convenience of the people, and 

to facilitate the enjoyment of the natural attractions of this state.lI 

The SIP is the state's roadmap for delivering the "best air quality possible," as guaranteed to 

every North Dakota resident by state law. 

a.	 NDDH must ensure enforcement of the National Ambient Air Quality Standard 

(NAAQS) for PM2.5 

The Clean Air Act requires EPA to establish ambient air quality standards at a level that protects 

public health, including the health of susceptible populations, with an "adequate margin of 

safety.,,12 The air quality standards must be based solely on the health effects of the pollutant, 

and may not take into consideration other factors such as cost of achieving the standard. 13 

In 1997, EPA promulgated new annual and 24-hour NAAQS forPM2.5.

14 EPA's bases for 

regulating PMlO and PM2.5 separately under distinct NAAQS were and remain the differences in 

people's exposure, where the particles lodge in the body (PM2.5 penetrates deeper into the lungs), 

and the health effects associated with each. 15 EPA later tightened the PM2.5 24-hour standard 

from 65 micrograms per cubic meter (Jlg/m3

) to 35 Jlg/m3

, but left the annual standard 

unchanged. 16 NDDH, in its SIP revisions, is adopting both standards in accordance with the 

Clean Air Act. 

b.	 The Prevention of Significant Deterioration (PSD) program requires compliance 

with NAAQS and PSD increments, as well as application of BACT 

In order to protect air quality in areas that are'currently meeting thePM2.

5 NAAQS (all of North 

Dakota), the PSD section of the New Source Review program requires a construction permit 

with "best available control technology" limits for new sources of air pollution. Section 165 

prohibits construction of a major emitting facility in an attainment area unless the 

owner or operator ... demonstrates ... that emissions from the 

.construction or operation of the facility will not cause, or 

contribute to, air pollution in excess of any . . . maximum 

allowable increase or maximum allowable concentration ... [or] 

national ambient air quality standard. 17 

11 N.D. CENT. CODE, § 23-25-01.1 (2008); see also N.D. ADMIN. CODE § 33-15-02-03 ("In keeping with the purpose 

of these ambient air quality standards, the quality should be such that: (1) The public health will be protected
 

including sensitive or susceptible segments of the population.").
 

12 See 42 U.S.c. § 7409(b)(I).
 

13 Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 471 (2001).
 

14 See National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652 (July 18, 1997); 40
 

C.P.R. § 50.7. 

-	 15 National Ambient Air Quality Standards for Particulate Matter, 71 Fed. Reg. 61,144,61,147 (Oct. 17,2006). 

16 [d. The annual standard for PM2.

5 is 15 p.g/m3

. 

17 42 U.S.c. § 7475(a)(3)(B) (emphasis added). 
Page 4 of9 . 

Section 165 also prohibits construction of a major source unless "the proposed facility is subject 

to the best available control technology for each pollutant subject to regulation under [the Clean 

Air Act] emitted from, or which results from, such facility.,,18 In other words, NDDH must 

ensure that any proposed source will not lead to a violation of any PSDincrement or NAAQS, 

and require strict control of emissions of each pollutant subject to regulation. 

According to EPA, the promulgation of a NAAQS for PM2.

5 on July 18, 1997 triggered the duty 

to apply these PSD requirements to fine particles. 19 Therefore, a proposed source cannot be . 

constructed until there is a demonstration that the PM2.5NAAQS will not be violated and the 

construction permit has a BACT limit for PM2.5. With the adoption of the PM2.5 NAAQS, 

NDDH must ensure that all new sources in North Dakota will meet these two requirements. The 

roles require that no new source of air pollution in North Dakota may emit air pollution that 

"causes or contributes to a violation in the ambient air ... [quality] standards.,,2o Furthermore, 

"any air contaminant which exceeds these [NAAQS] limits is hereby declared to be unacceptable 

and requires air pollution control measures. ,,21 

III. Using PMIO as a surrogate for PM2.5is unacceptable as a matter of law 

Despite clear bases for requiring direct regulation of PM2.5, EPA has allowed state permitting 

authorities to regulate PMIO only. A guidance memorandum was issued right after the PM2.5 

NAAQS were promulgated that suggested permitting authorities use PMIO as a surrogate for 

PM2.5 because of difficulties in monitoring, estimating, and modeling PM2.5 emissions.22 

a. The Clean Air Act prohibits the use of the surrogacy approach 

The Clean Air Act and its implementing regulations require direct control of PM2.5. The legal 

distinction between PM2.5 and PMIO precludes the use of PMIO as a surrogate. There is no way a 

determination of BACT for PMIO can qualify as the required determination of BACT for the 

separate and distinct pollutant known as PM2.5?3 The conclusion that a proposed source will not 

cause or contribute to a violation of the PMIO NAAQS does not satisfy NDDH's legal duty to 

evaluate whether a proposed source would cause or contribute to a violation of the PM2.

5 · 

NAAQS. 

In the intervening eleven years, EPA has declared that the basis for the 1997 .¥uidance, . 

"significant technical difficulties" with measuring PM2.5, has been resolved. 2 Any assertions 

18 [d. at (4) (emphasis added).
 

19 Proposed Rule to Implement the Fine Particle National Ambient Air Quality Standards, 70 Fed. Reg. 65,984,
 

66,043 (Nov. 1,2005) (obligation to implement PSD for PM2.5 was triggered on the effective date for the NAAQS);
 

see also 42 U.S.C. § 7475(a)(I)-(4).
 w . N.D. ADMIN. CODE § 33-15-02-07 (2007); see also N.D. CENT. CODE § 23-25-04.1(1).
 

21 N.D. ADMIN. CODE § 33-15-02-04 (2007).
 

22 Memorandum from John S. Seitz, Director, Office of Air Quality Planning Standards, to Regional Air Directors,
 

Interim Implementation of New Source Review for PM2.5 (Oct. 23, 1997).
 

23 See National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652 (July 18, 1997); National
 

Ambient Air Quality Standards for Particulate Matter, 71 Fed. Reg. 61,144, 61,147 (Oct. 17,2006).
 

.- 24 Final PM2.5 Rule, at 28,340; see also Prevention ofSignificant Deterioration (PSD) for Particulate Matter Less
 

Than 2.5 Micrometers (PM[2.5])--Increments, Significant Impact Levels (SILs) and Significant Monitoring
 

Concentration (SMC), 72 Fed. Reg. 54,112 (Sept. 21, 2007).
 
Page 5 of9 

-- regarding technical limitations relative to PM25 are outdated. Technical capabilities for 

modeling PM25 do exist. 25 EPA has identified available models to analyze the impacts of 

PM2.

5?6 Appendix W to 40 C.ER. Part 51 "addresses the regulatory application of air quality 

models for assessing criteria pollutants under the Clean Air Act.'.27 The Guideline provides for 

modeling of PM2.5 using both the ISC and AERMOD models. EPA has also approved two 

. methods, CTM-039 and CTM-040, for measuring PM2.5?8 

b. Other States are requiring PM2.5 regulation 

Numerous experts have demonstrated that the technical concerns behind the surrogacy approach 

have been resolved. State adjudicative bodies faced with the surrogacy approach in New Source 

Review permitting challenges have rejected it on the basis that sufficient technical grounds exist 

to comply directly with PM2.

5 requirements. Montana's Board of Environmental Review has 

found that setting BACT emission limits for PM2.5 emissions from a boiler is feasible using 

existing test methods, emissions estimates from boiler manufacturers, and "design alternative 

equipment, work practices or operational standards to reduce emissions of PM2.

5 to the maximum 

extent.',29 As the Board further noted, any legitimate remaining issues with the measurement of 

PM2.5do not remove the duty to include PM2.5-specific BACT limits in a new source permit.30 

. The definition of BACT allows the use of "a design, equipment, work practice, operational 

standard or combination thereof' to be used with a numeric estimate Of the emissions level to be 

achieved when measurement problems exist.3l 

_ . Similarly, a state court has accepted a PM2.

5 modeling demonstration showing a violation of the 

. PM2.5 NAAQS.32 The court found that when faced with such a demonstration, a state agency 

could not rest on PMlO modeling alone. 33 These' states are rightfully refusing to accept lax 

analyses of an inappropriate surrogate in place of the most protective analyses that are feasible in 

practice and required under the law. 

25 Revision to the Guideline on Air Quality Models: Adoption of a Preferred General Purpose (Flat and Complex 

Terrain) Dispersion Model and Other Revisions, 70 Fed. Reg. 68,218,68,234-68,235 (Nov. 9, 2005);40 C.F.R. Part 

51 Appendix W, 5.1(e), (t), (h), 5.2.2.1. 

26 40 C.F.R. Part 51 Appendix W (prescribing modeling requirements for PM2.5); 40 C.F.R. § 52.21(1); 

Requirements for Preparation, Adoption, and Submittal of Implementation Plans. 61 Fed. Reg. 41,838,41,850 (Aug. 

12,1996); 40 C.F.R. Part51 Appendix W 7.2.2(c) (showing that historically. "ISC [was] recommended for point 

sources of small particles... "). 

27 Revision to the Guideline on Air Quality Models: Adoption of a Preferred General Purpose (Flat and Complex 

Terrain) Dispersion Model and Other Revisions. 70 Fed. Reg. 68,218 (Nov. 9,2005). . 

28 Clean Air Fine Particle Implementation Rule,'n Fed. Reg. 20,586,20,653 (April 27, 2007). 

29 Board of Environmental Review of the State of Montana, "Findings of Fact, Conclusions of Lawand Order on 

Claims of Petitioners that the Department of Environmental Quality Failed to Comply with Permitting Requirements 

Applicable to PM2.5 and Ruling on Regulation of CO2 for BACT Purposes," In the Matter of' Southern Montana 

Electric Generation and Transmission Cooperative-Highwood Generating Station, Case No. BER 2007-07 AQ, 27­

28 and 36 (May 30, 2008) (Highwood Order). 

30 ld. 31 40 C.F.R. §§ 51.166(b)(12) and 52.21(b)(12). 

_.- 32 Friends ofthe Chattahoochee v. Couch, in the Superior Court of Fulton County, State of Georgia, Docket No. 

2008CV146398, Final Order (June 30, 2008), at 9-12. 

33 ld. 
Page 6 of9 

Additionally, at least one facility faced with a surrogacy challenge has agreed to install PM2y 

specific controls, submit PM2.5 reports, propose PM2yspecific numeric emission limits, and 

install PM CEMS as a condition of a settlement agreement. 34 This agreement shows that direct 

PM2.5 control is feasible. 

c.	 NDDH should not rely on the Final PM2.5 Rule's attempt to codify the surrogacy 

guidance 

EPA's recent attempt to codify its earlier guidance on PMIO surrogacy retroactively is also 

unlawful. In its Final PM2.5 Rule, EPA impermissibly waived the existing Clean Air Act 

requirements described above for sources with applications deemed complete prior to July 15, 

2008. 35 In doing so, EPA purports to give the force of law to a guidance memorandum th?t was 

never adopted through notice-and-comment rulemaking. 36 By EPA's own admission, this 

guidance was never legally binding on state permitting authorities. 37 EPA memoranda do not 

supersede the authority of the Clean Air Act's implementing regulations. EPA does not have the 

power to repeal a federal statutory requirement. States must ensure that emissions from a given 

facility will not result in the violation of NAAQS forany pollutant, period. 38 EPA promulgated 

NAAQS for PM2.5, making it a pollutant for which modeling must be done to ensure that the 

standard will not be violated. 39 EPA cannot repeal the regulation with a guidance memorandum. 

North Dakota would do well to abstain from following an optional component of yet another 

faulty Clean AirAct rule. On numerous occasions, the D.C. Circuit and the Supreme Court have 

overturned EPA's recent failures to follow the plain language of the Clean Air Act in its 

rulemakings. The cases and overturned rules include: 

•	 Massachusetts v. EPA, 549 U.S. 497 (2007), in which EPA erroneously decreed that the 

Clean Air Act does not give EPA authority to regulate greenhouse gases. In the related 

State ofNew York v. EPA, No. 06-1322 (D.C. Cir.), the court remanded the case based on 

EPA's refusal to regulate greenhouse gases in its New Source Perfonnance Standards for 

power plants. 

•	 ,Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936 (D.C. Cir. 2004), in 

which EPA failed to evaluate a required factor when it issued emissions standards for 

small municipal waste combustors. 

•	 Mossville Environmental Action Now v. EPA, 370 F.3d 1232 (D.C. Cir. 2004), in which 

EPA failed to issue emissions standards for each listed hazardous air pollutant emitted 

from PVC plants. 

34 Settlement Agreement of March lO, 2008 among U.S. Steel Corporation, Gateway Energy & Coke Company,
 

LLC, American Bottom Conservancy, and Sierra Club. The facility is located in Illinois.
 

35 See Final PM2.5 Rule at 28349; 40 C.F.R. § 52.21(i)(l)(xi) (allows use of surrogate approach for applications
 

complete as of July 15,2008 with respect to using PMIO instead of PM2.5)'
 

36 Highwood Order, at 25. .
 

37 Memorandum from John S. Seitz, Director, Office of Air Quality Planning Standards, to Regional Air Directors,
 

Interim Implementation of New Source Review for PM2.5 (Oct. 23, 1997).
 

38 42 U.S.c. § 741O(a)(2)(D)(i)(1).
 

39 40 c.F.R. §§ 51.166(k)(1); 52.21(k)(I).
 
Page 7 of9 

•	 New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) (New York f), in which EPA promulgated 

a New Source Review rule impermissibly allowing the agency to evaluate emissions 

increases without measuring actual emissions from major pollution sources. 

•	 New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006) (New York If), in which EPA 

promulgated a rule impermissibly exempting plant process unit modifications valued at 

less than 20% of the process unit from triggered New Source Review. 

•	 SCAQMD v. EPA, 472 F.3d 882 (D.C. Cir. 2006), in which EPA unlawfully evaded more 

protective and prescriptive measures intended by Congress to govern areas that fail to 

meet the Clean Air Act's ground-level ozone standard. 

•	 Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007), in which EPA promulgated 

hazardous air pollution standards for brick and cement kilns that failed to heed statutory 

requirements for minimum stringency. 

•	 NRDC v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) (NDRC f), in which EPA promulgated 

rules covering hazardous air pollutants from commerciallindustrial boilers and solid 

waste incinerators that employed unlawfully narrOw definitions of the sources subject to 

the standards. 

•	 NRDC v. EPA, 489 F.3d 1364 (D.C. Cir. 2007) (NRDC If), in which EPA unlawfully 

attempted to exempt an allegedly "low risk" subcategory of plywood and composite 

wood product manufacturing facilities from Clean Air Act standards limiting emissions 

of hazardous air pollutants. 

•	 New Jersey v. EPA, No. 05-1097 (Feb. 8, 2008), in which EPA promulgated the Clean 

Air Mercury Rule without making the required public health findings before reversing a 

previous finding that regulation of hazardous air pollutants from electric generating units 

under Section 112 is "appropriate and necessary." 

•	 North Carolina v. EPA, No. 05-1244 (July 11,2008), in which EPA promulgated the 

Clean Air Interstate Rule based on numerous impermissible factors. 

•	 Sierra Club v. Environmental Protection Agency, No. 04-1243 (August 19,2008), in 

which EPA promulgated a rule that prohibited permitting authorities from including 

monitoring sufficient to assure compliance under Title V permits, in violation of the 

. "statutory directive that each permit must include adequate monitoring requirements." 

EPA is attempting, through the Final PM2.5 Rule, to undermine the Clean Air Act. Federal courts 

rejected similar attempts in all of the cases listed above.4o Given this poor record, North Dakota 

would act prudently by declining to follow a voluntary aspect of the Final PM2.

5 Rule that is rife 

with legal problems and makes sense, in the words of the U.S. Court of Appeals for the D.C. 

Circuit, only "in a Humpty Dumpty world.,,41 

It is critical for NDDH to keep in mind that even if the Final PM2.5 Rule is valid (which it is not), 

the Rule does not foreclose' the state from protecting the health of its citizens by regulating PM2.5 

directly (a discussion of North Dakota Century Code Section 23-25-03.3(1) is below). It is 

EPA's longstanding policy that permitting authorities retain broad discretion to consider options 

and alternatives, both under BACT provisions and the "alternatives" analysis required under 

40 An appeal of the Final PM2.5 Rule has been filed in the United States Court of Appeals for the District of 

Columbia. See Natural Resources Defense Council and Sierra Club v. U.S. EPA, No. 08-1250 (filed July 15,2008). 

41 New York II, 443 F.3d at 887. 
Page 8 of9 

Section 110.42 Such considerations include establishing BACT limits for PMZ.5 directly,_ rather 

than relying on EPA's flawed surrogacy approach. In fact, the Final PMZ.5 Rule specifically 

notes that States may go beyond the provisions of the Rule. For example, while the Final PM2.5 

Rule improperly allows permitting agencies to avoid PMZ.5 condensables until 2011, the Rule 

state, "prior to this date, States are not prohibited from establishing limits in [New Source 

Review] permits that include the condensable fraction of PM2.5 emission.,,43 Therefore, NDDH 

need not follow EPA's (mis-) application of the Clean Air Act to PMz.5, but instead retains "the 

discretion to engage in a broader analysis" if it so desires.44 

IV. Conclusion 

While the North Dakota Century Code does prevent NDDH from adopting standards and 

regulations that are more stringent than the Clean Air Act, such is not the case here. 45 We are 

not asking NDDH to go beyond the requirements and standards promulgated by EPA in the Final 

PMz.5 Rule. To the contrary, we are asking NDDH to implement all the standards for PMZ5, both 

the NAAQS (which NDDH is proposing to adoft in this revision) and the significant emissions 

rate for PMZ.5 defined in the Final PMZ.5 Ru1e.4 We are also asking NDDH to reject the 

surrogacy approach for PM2.5 regulation and to address condensable PM emissions immediately. 

These are regulations NDDH will eventually have to adopt in North Dakota's SIP. 

The Final PM2.5 Rule only requires adoption of the 10 tons per year significant emissions rate.47 

The use of PMIQ as a surrogate for PMZ.5 is EPA's rule for dealing with PMZ.

5 emissions in the 

three-year transitional period before States are required to adopt the Final PMz.5 Rule. All "SIPApproved States" will have to revise its PSD rulesto add the significant emissions rate for PMZ.

5• 

Therefore, as NDDH is revising North Dakota's SIP now, the department should make all 

necessary revisions to come into compliance with the Clean Air Act. To delay based on 

voluntary EPA guidance is risky both legally andfor the tens of thousands of North Dakotans 

living with asthma every day. 

Eleven years after EPA recognized the need to regulate PMz.5, NDDH's proposal to use PMlO as 

a surrogate for PMZ.5 threatens North Dakotans' health and quality of life. EPA and other states 

recognize that the tools exist now for conducting air quality modeling and BACT analyses for 

PMz.5. NDDH should not wait for a separate rulemaking for PMz.5 but apply existing state and. 

federal regulations to air permit applications. Relying on the surrogacy approach-put forth in a 

legally erroneous, outdated and technically unjustified guidance memorandum and codified only 

as an opinion in a tenuous federal rule-will result in harmful levels of PMz.5 pollution for 

42 See 42 V.S.c. § 7410.
 

43 Final PM2.

5 Rule at 28,334-28,335.
 

44 Prairie State, slip op. at 29 n. 22, 40; In re Knauf Fiberglass, PSD Appeal Nos. 98-3 through 98-20, 8 E.A.D. 121,
 

136 (E.A.B. Feb. 4, 1999).
 

45 N.D. CENT. CODE § 23-25-03.3(1) (2008) states:
 

[T]he department may not adopt air quality rules or standards .. , which are more strict than 

federal rules or standards under the Clean Air Act, nor may the department adopt air quality rules 

._ or standards ... when there are nO corresponding federal rules or standards. 

46 The significant emissions rate for PM2.5 is defined as 10 tons per year. Final PM2.5 Rule, at 28,332. 

47 Ed. 
Page 9 of9 

,~- decades to come. North Dakota cannot afford this heavy burden to fall on the most vulnerable: 

our elders and children. 

Thank you for your consideration. 

Sincerely, 

111~~ Nicole Shalla
 

Staff Attorney
 

Cc:	 Mark Trechock
 

Mary Mitchell
 

Michael Lukes
 

Kora Dockter
 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 

REGION 8
 

1595 Wynkoop Street 

DENVER, CO 80202-1129 

Phone 800-227-8917 

http://www.epa.gov/region08 

OCT - 7 2008 

Ref: 8P-AR 

Terry L. O'Clair, Director 

Division of Air Quality 

Environmental Health Section 

North Dakota Department of Health 

918 E. Divide Ave. 

Bismarck, ND 58501-1947 

RE:	 EPA Region 8 Comments for October 7,2008 

Public Hearing on Proposed Revisions to the North 

Dakota Air Pollution Control Rules and State 

Implementation Plan 

Dear Terry: 

EPA has completed a preliminary review ofthe draft revisions to the North Dakota State 

Implementation Plan (SIP) and Air Pollution Control Rules, as submitted by you with a letter 

dated August 19, 2008. Our comments and questions for the October 7, 2008 public hearing are 

detailed in the attachment to this letter. In addition and as we have done previously, we also 

included comments on problematic Director's discretion concerns in the chapters noticed for the 

upcoming hearing. In the event that your final submittal to EPA includes these chapters in their 

entirety, you will need to revise the existing problematic language. 

As you are aware, there are several proposed revisions that arc not appropriate for 

incorporation into the North Dakota SIP for various reasons. These reasons are listed below 

along with the proposed North Dakota provisions that fall into each category. 

1.	 Programs for which EPA should delegate authority to the State instead of incorporating 

them into the SIP: Chapter 33-15-12 Standards for Perfonnance for New Stationary 

Sources (New Source Performance Standards - NSPS) and any related emission guideline 

plans, Chapter 33-15-13 Emission Standards for Hazardous Air Pollutants (40 CFR Part 

61 National Emission Standards for Hazardous Air Pollutants - Part 61 NESHAPs), and 

Chapter 33-15-22 Emission Standards for Hazardolis Air Pollutants for Source Categories 
(40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants - Part 63 

NESHAPs); and 

2.	 Programs which EPA has already approved at the State level and which should not be 

approved as a SIP revision: Chapter 33-15-14-06 Title V Permit to Operate (approval 

effective 8/16/99), including the related fees in Chapter 33-15-23-04 Major Source Permit 

to Operate Fees, and 33-15-21 Acid Rain Program (approved 10111/95). 

Any comments on the above-proposed revisions will be handled separately, with the
 

exception ofour comments on Chapter 33-15-12 Standards of Performance for New Stationary
 

Sources, which are included below.
 

As a reminder, a written response to EPA's comments, and all other comments received, 

is required to meet the completeness criteria outlined in 40 CFR Part 51 Appendix V and must be 

included in the formal Governor's submittal of these revisions to the SIP once they are finalized. 

We emphasize that we will only come to a final conclusion regarding the adequacy of these 

North Dakota SIP revisions when we act on them through our own public notice and comment 

rulemaking. 

We appreciate the opportunity to provide comments for your public hearing. If you have 

any questions on EPA's comments, please call me at 303-312-6434, or have your staff call Amy 

Platt at 303-312-6449. 

Callie A. Videtich, Director 

Air Program 

Enclosure 

cc: Tom Bachman, NDDH 

_..

2
 
ENCLOSURE 

EPA'S COMMENTS FOR NORTH DAKOTA'S October 7,2008 PUBLIC HEARING 

Chapter 33-15-01, General Provisions 

1. 

2. 

3. 

4. 

_. 

5. 

6. 

To ensure that opacity limits and work practice standards are also covered, the new 

paragraph 33-15-01-13.1.f. should be revised to read " .. .in excess of any emission limit 

contained in this article or a permit issued pursuant to this article, or actions inconsistent 

with an applicable requirement specified in this article or a permit issued pursuant to this 

article." 

In 33-15.,01-13 .2.c., the requirement for report submission "by the end of the next 

reporting period" is unclear and not very rigorous (we note that Wyoming's provision 

requires submittal within 14 days ofthe incident). We suggest you clarify the language 

and shorten the reporting time frame. 

In 33-15-01-13.3, it appears that you're proposing to exchange a new Director's 

discretion provision for the existing one. We don't believe this revision will adequately 

resolve our concerns. 

In previous discussions regarding concerns with your shutdown/malfunction provisions of 

33-15-01-13, we also identified additional problematic malfunction provisions in 33-15­

02-07.4, 33-15-05-01.2a(1), and 33-15-20-04.6 (we note that you have addressed the 

additional concern in 33-15-05-03.2.2.d). These additional malfunction provisions still 

need to be removed or corrected since malfunctions should now be handled under your 

revised malfunction provisions of33-15-01-13 (see below). 

We note that the revision to 33-15-01-14.2 seems to be largely housekeeping in nature; 

however, problematic Director's discretion is still retained. This would be an opportune 

time to eliminate the Director's discretion, especially considering it is so many years after 

the compliance deadline ofJuly 1, 1970, and the revision would have to be treated by 

EPA as a new, problematic Director's discretion provision. 

Please note that although 33-15-01-07, Variances, is not included in the State's current 

public hearing process, we have commented previously that it must be removed from the 

SIP or revised to include a provision that no variance shall be effective until EPA 

approves it as a SIP revision pursuant to section 110 of the Clean Air Act. If the State 

ultimately adopts the proposed revisions to 33-15-01, the Governor's submittal to EPA 

should not include this problematic existing section unless it has been adequately revised 

or removed. 

Chapter 33-15-02, Ambient Air Quality Standards 

7.	 Please clarify the daily maximum 8-hour average ozone standard in Table 1. Is your 

intent to use EPA's 1997 standard of 0.08 ppm or EPA's 2008 standard of 0.075 ppm? 
Chapter 33-15-05 Emissions of Particulate Matter Restricted 

8.	 We note that you have deleted the problematic malfunction provision of33-15-05­

03.2.2.d, as requested. In addition, 33-15-05-01.2a(1) was also identified as a 

problematic malfunction provision. Since the process weight requirements ofthis 

provision have relevance to the maintenance ofthe I\lAAQS, the exceptions provided 

should be removed. Malfunctions can be handled under the revised malfunction language 

of33-15-01-13. 

9.	 Please note that there are existing Director's discretion concerns with 33-15-05 that are 

not included in the State's current public hearing process (see 33-15-05-02.2.f., 33-15-05­

03.2.3.a., 33-15-05-04.1, and 33-15-05-04.1.e.). If the State ultimately adopts the 

proposed revisions to 33-15-14-05, the Governor's submittal to EPA should not include 

these problematic existing sections unless we have had the opportunity to discuss them 

and they have been revised appropriately. 

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

10.	 The proposed revision updates the date for incorporation by reference of 40 CFR Part 60 

to March 1, 2008, with the exception that the following subparts are omitted: Eb, L, M, 

N, Na, P, Q, R, S, BB, EEEE, nn, and JJJJ. Please confinn that it is the State's belief 

that these omitted subparts are not required to effectively operate the Air Pollution 

Control Program since North Dakota does not have sources for which these standards 

would be applicable. Please note that if a source that would be subject to these deleted 

subparts decides to locate in North Dakota, then the State will need to go through the 

delegation request process again and, in the meantime, the source will be subject to 

Federal jurisdiction only. 

11.	 It appears that the Appendices A-I were inadvertently marked through for deletion. 

Please claritY. 

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

Source Permit to Operate, Title V Permit to Operate 

12.	 While North Dakota's MACT program is contained in Chapter 33-15-22 and is not part of 

the federally approved SIP, the proposed revision to 33 -15-14-01.14, which would limit 

the field of applicable sources to major sources, is part of the federally approved SIP. As 

such, it appears to be a relaxation and you will need to demonstrate that the NAAQS, 

PSD increments, and any other Clean Air Act requirements will not be adversely 

impacted by this revision in order for it to be approvable. 

13.	 Although the revision to 33-15-14-02.6.c. is housekeeping in nature, it is in a version of 

the rule that we have never acted on due to approvability concerns. Until our previously 

discussed concerns with 33-15-14-02.6 are addressed, we will be unable to act on any 

subsequent revisions to it. 

14.	 Please note that the revision to 33-15-14-06.1.c should be submitted under the Title V 

2
 
program since Section 6 is not part ofthe federally approved SIP. 

15.	 Please note that there are existing Director's discretion concerns with 33-15-14 that are 

not included in the State's current public hearing process (see 33-15-.l4-02.13.n., 33-15­

14-02.19, and 33-15-14-03.16). Ifthe State ultimately adopts the proposed revisions to 

33-15-14, the Governor's submittal to EPA should not include these problematic existing 

sections unless we have had the opportunity to discuss them and they have been revised 

appropriately. 

Chapter 33-15-23, Fees 

16.	 It appears that the proposed revision to section 33-15-23-03, regarding classification of 

sources for determining minor source annual fees, would reduce fee revenue for the 

department. Please provide the necessary assurances, as required under Clean Air Act 

Section 11 0(a)(2)(E), that the department will still have adequate resources for 

implementation and oversight ofthe program. 

SIP Chapter 7, Revisions Regarding Interstate Transport Relating to the 8-hour Ozone and 

PM2.S National Ambient Air Quality Standards 

17.	 To avoid any misinterpretation of the provisions, please revise the second line of the first 

paragraph in SIP Section 7.8 to read, " ... State Implementation Plans to contain adequate 

provisions prohibiting..." 

-	 18. To accurately reflect the language of Clean Air Act Section 11 0(a)(2)(D)(i)(l), please 

revise SIP Section 7.8, second paragraph, third line to read" ...primary or secondary... " 

19.	 SIP Section 7.8.1: We suggest that the" 1997" date be inserted so that the title reads 

"Interstate Transport Relating to the 1997 8-Hour Ozone and PM25 National Ambient Air 

Quality Standards." In addition, you may want to add the reference to "1997" as 

appropriate whenever the SIP text refers to the ozone and/or PM25 standards, to clarify 

that analyses and conclusions for the 8-hour ozone and PM2 .5 standards refer to the 

standards promulgated by EPA in July 1997. The inclusion ofthis date will allow readers 

to differentiate between the current Interstate Transport SIP, and future Interstate 

Transport SIPs that will address the same Section 11 0(a)(2)(D)(i) requirements for new 

PM2.5 and 8-hour ozone standards. 

SIP Revisions Regarding PM and Ozone NAAQS 

20.	 The proposed new SIP sections for Chapter 6 refer to existing SIP section 6.8. Either 

section 6.8 should be updated to reference 40 CFR Part 58.10 or you should include the 

following updated language in the proposed revisions: "Annual Monitoring Network 

Plan and Periodic Network Assessment: Beginning July 1,2007, the State, or where 

applicable local, agency shall adopt and submit to the Regional Administrator an annual 

monitoring network plan which shall provide for the establishment and maintenance of an 

air quality surveillance system that consists of a network of SLAMS monitoring stations 

including FRM, FEM, and ARM monitors that are part of SLAMS, NCore stations, STN 

stations, State speciation stations, SPM stations, and/or, in serious, severe and extreme 

3 
ozone nonattainment areas, PAMS stations, and SPM monitoring stations. The plan shall 

include a statement of purposes for each monitor and evidence that siting and operation of 

each monitor meets the requirements of appendices A, C, D, and E of 40 CFR Part 58, 

where applicable. The annual monitoring network plan must be made available for public 

inspection for at least 30 days prior to submission to EPA. The State, or where applicable 

local, agency shall perform and submit to the EPA Regional Administrator an assessment 

of the air quality surveillance system every 5 years to determine, at a minimum, if the 

network meets the monitoring objectives defined in appendix D to 40 CFR Part 58, 

whether new sites are needed, whether existing sites are no longer needed and can be 

terminated, and whether new technologies are appropriate for incorporation into the 

ambient air monitoring network. The network assessment must consider the ability of 

existing and proposed sites to support air quality characterization for areas with relatively 

high populations of susceptible individuals (e.g., children with asthma), and, for any sites 

that are being proposed for discontinuance, the effect on data users other than the agency 

itself, such as nearby States and Tribes or health effects studies. For PM2.5, the 

assessment also must identify needed changes to population-oriented sites. The State, or 

where applicable local, agency must submit a copy of this 5-year assessment, along with a 

revised annual network plan, to the Regional Administrator. The first assessment is due 

July 1,2010." 

21.	 The proposed new sections for SIP Chapter 6 include some inconsistencies in site names 

and sampler types from your AQS site descriptions. For PM2.5, Fargo NW is listed as 

having a STN monitor in addition to manual and continuous samplers, TRNP-NU does 

not have a manual sampler, and there is no TRNP-SU site. For PMIO, Bismarck 

Residential does not include a manual sampler, and there is an additional site at BeulahNorth with a continuous sampler. For ozone, there is not a TRNP-SU site, and there is an 

additional site atBismarck Residential. In general, site names are somewhat different, 

e.g., Beulah-North, Bismarck Residential, Fargo-NW, and Lostwood NWR. Please 

clarify what the correct site name and sampler information should be for each pollutant to 

avoid confusion with any past or future sites. 

22.	 In order to more fully address the requirements of Clean Air Act Section 11 O(a)(2)(G), 

which requires states to provide for authority to implement the emergency episode 

provisions in their SIPs and specifically to include PM2.5, PM2.5 should be added to Table 

6 ofN.D.A.C., 33-15-11, Prevention ofAir Pollution Emergency Episodes. Also, the 

State should self-determine priority levels under 40 CFR 51.150, Classification. of 

Regions for Episode Plans, Subpart H - Prevention of Air Pollution Emergency Episodes, 

and determine whether a contingency plan is required. 

23.	 Clean Air Act Sections 11 0(a)(2)(J) and 127 require, among other things, States to notify 

the public ifNAAQS are exceeded in an area and to enhance public awareness of 

measures that can be taken to prevent exceedances. Since the proposed SIP revisions do 

not address these requirements, we recommend adding provisions to do so or identifying 

existing provisions elsewhere in the SIP that address the requirements. 

24.	 Clean Air Act Section 11 0(a)(2)(M) requires States to provide for consultation and 

participation in SIP development by local political subdivisions affected by the SIP. 

Since the proposed SIP revisions do not address this requirement, we recommend adding 

revisions to do so or identifying existing SIP provisions that address the requirement. 

4 
25.	 It appears that the proposed revisions to SIP Chapter 9, Resources, are intended to 

completely replace the existing, federally approved version of the chapter. If so, please 

ensure that the Governor's submittal of the final revisions requests that action. 

5
 
ENVIRONMENTAL HEALTH SECTION 

Gold Seal Center, 918 E. Divide Ave. 

NORTH DAKOTA Bismarck, ND 58501-1947 

DEPARTMENT of HEALTH 701.328.5200 (fax) 

www.ndhealth.gov 

November 17, 2008 

Ms. Callie Videtich
 

U.S.	 

1595 

Director, 

Wynkoop 

EPA, Region 

Air 

Street 

Program
 

8 F\LE

Denver, CO 80202-1129 

Re:	 Comments on North Dakota's 

Proposed Rule & SIP Revisions 

Dear	 M~h:a/j:e

This letter is in response to your, October 7, 2008 comments on our 

proposed rule and State Implementation Plan (SIP) revisions that 

were the subject of a hearing on October 7, 2008. We have reviewed 

your comments and our response follows the numbering in your 

letter. 

1.	 It was suggested that the following language be added to the 

proposed definition of excess emissions: "or any actions 

inconsistent with an applicable requirement specified in this 

article." The suggested language is inconsistent with the 

definition of "excess emissions" in 40 CFR 51.100(bb) which 

states: "Excess emissions means of an air pollutant in excess 

of an emission standard. It. The suggested addition would 

greatly expand the types of actions that are considered excess 

emissions. For example, under the suggested language, failure 

to conduct monitoring would be considered an "excess emission" 

even if the control equipment was operating perfectly. We 

would consider this a deviation from the permit and not an 

excess emission. 

We have revised the defini tion, after discussion wi th our 

staff, to: 

"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 . 

.
-


Environmental Health Division of Division of Division of Division of 

Section Chiefs Office Air Quality Municipal Facilities Waste Management Water Quality 

701.328.5150 701.328.5188 701.328.5211 701.328.5166 701.328.5210 

Printed on recycled paper. 
Ms. Videtich	 2 November 17, 2008 

2.	 The comment stated that the time for a written report (i.e. by 

the end of the next reporting period) on unavoidable 

malfunctions was "unclear and not very rigorous". The 

reporting time in the Department's rule was based on 

Colorado's rule which was supplied to the Department by EPA as 

an ,example. We have reevaluated the rule and changed the 

reporting period to quarterly. 

3 .	 The language has been changed to: 

"The owner or operator of a source that uses an alternative 

method shall have the burden of demonstrating that ,the 

alternative method is accurate." 

4.	 We have not proposed changes to Sections 33-15-02-07.4 and 33­

15-05-01.2.a(1). We will review the sections and address them 

at another time. 

With regard to Section 33-15-20-04.6, this section only covers 

reporting of malfunctions and clearly states that it does not 

obviate the sources responsibility to comply with the 

remainder of the chapter or article (i.e. all other rules). 

With the changes to 33-15-01-13, we believe 33-15-20-04.6 

should be acceptable. 

5.	 We have withdrawn the proposed changes. 

6.	 Section 33-15-01-07 will not be submitted for approval. 

7.	 The Department is adopting the 0.075 ppm standard. The 

reference to the 0.08 ppm standard has been changed to 0.075 

ppm. 

8.	 Section 33-15-05-01.2.a(1) was not proposed for revision. We 

will evaluate this section and address it at a later date. 

9.	 The Department will not submit the referenced sections with 

the SIP revision. 

10.	 The Department has intentionally omitted the referenced 

subparts of 40 CFR 60 since there are no affected sources in 

North Dakota. 

11.	 Appendices A-L were inadvertently deleted. They will be 

reinstated. 

12.	 The MACT standards only address the emission of hazardous alr 

pollutants, not pollutants for which a National Ambient Air - Quality Standard or a PSD increment has been promulgated. In 

addition, the permitting exemption does not affect any 
Ms. Videtich	 3 November 17, 2008 

emission limits or other requirements that would affect the 

amount of emissions or ambient concentrations. We believe an 

analysis to demonstrate that the NAAQS and PSD increments will 

not be adversely affected should not be required. 

13.	 The revisions to Section 33-15-14-02.6.c will not be submitted 

for approval. 

14.	 Agreed 

15.	 The referenced sections will not be included in the Governor's 

submittal. 

16.	 The proposed revision to 33-15-23-03 simply codifies an 

exemption from permitting fees for local governments. The 

Department has not collected these fees in the past. If they 

had been collected, it would amount to less than $2,500 per 

year or less than 0.2% of the fees collected. The proposed 

rule will not affect the Department's ability to implement the 

requirements of the Clean Air Act. 

17. Agreed 

18. Agreed 

19. The titIe of the section will be 

Ozone and PM2 . 5 National Ambient Air 

modified 

Quali ty 

to 

Sta

"1997 

ndards." 

8-Hour 

20. Section 6.8 of the SIP will be revi

to 40 CFR 58.10. 

sed to include a reference 

21.	 The names of the monitoring sites have been changed to match 

the AQS site descriptions. 

22.	 Since EPA has not adopted changes to 40 CFR 51, Subpart H for 

PM2 . 5 , it is extremely difficult for the Department to adopt 

priority levels and contingency plans for PM2 . 5 • The 

Department cannot be more stringent than Federal requirements 

unless we can show there is a substantial probability of 

significant risk to the public and prepare a cost-benefit 

analysis that shows there is a cost benefi t to the rule. 

Since the rule would cover emergency episodes that are very 

unlikely to occur in North Dakota, we believe such 

determinations cannot be made. When EPA adopts changes to 40 

CFR 51, Subpart H for PM2 . 5 , the Department will incorporate 

those changes into our SIP. 

23.	 The notification requirements for exceedance of the NAAQS is 

found in Section 6.9 of our SIP. 
Ms. Videtich	 4 November 17, 2008 

24.	 Intergovernmental Cooperation requirements are found in 

Chapter 10 of our SIP. 

25.	 rrhe revisions to Chapter 9, Resources, of the SIP will 

indicate it is a complete replacement of the existing Chapter 

9. 

If you have any questions, please have your staff contact 

Tom Bachman of my staff at (701)328-5188. 

Sincerely, 

Terry L. O'C1air, P.E. 

Director 

Division of Air Quality 

TLO/TB:saj 

xc:	 Amy Platt, EPA, Region 8 
October 7, 2008 

Martin R. Schock 

1121 North 29th Street 

Bismarck, ND 58501 

Terry L. O'Clair, P.E.
 

Director
 

Division of Air Quality
 

North Dakota Department ofHealth
 

918 East Divide Avenue
 

Bismarck, ND 58501-1947
 

Re: Rule and State Implementation Plan Revisions - 2008 

Dear Terry; 

Pursuant to your notice ofrule and SIP revisions, I am providing the comment that 

follows. 

- Section 7.7 titled "Air Quality Modeling" of your document titled Ozone and PM2.5 

NAAQS Implementation SIP Revision is reproduced on an attached page. The first 

paragraph ofthis section indicates: 

"Air quality modeling for new or modified sources will be conducted in 

accordance with Subsection 33-15-14-02.4 ofthe North Dakota Administrative 

Code (NDAC)." (emphasis added) 

Paragraph a ofSubsection 33-15-14-02.4 is reproduced on an attached page. This 

paragraph indicates: 

"Determination ofthe effects on ambient air quality as may be required under 

this section must be based on the applicable req uirements specified in the 

"Guideline on Air Quality Models (Revised) ... II (emphasis added) 

Finally, the second paragraph of Section 7.7 ofthe SIP indicates: 

Subsection 33-15-14-02.4 "requires conformance with 40 CFR 51 Appendix W, 

Guideline on Air Quality Models, ... " (emphasis added) 

I recommend removing the ambiguity between the second paragraph ofSection 7.7, the 

first paragraph ofthis section and paragraph a of Subsection 33-15-14-2.4 by deleting 

that entire second paragraph. The phrase "requires conformance" is not consistent with 
other published positions of the Department in recent years. In addition, that second 

paragraph does not add any information not already discussed in the SIP or in rule. 

Martin R. Schock 
7.7 AIR QUALITY MODELING 

The Department will perform. such air quality modeling as 

necessary for the purpose of predicting the effect on ambient 

air quality of any emissions of any air contaminant for which 

a State or National Ambient Air Quality Standard has been 

established. The Department will submit, upon request, data 

related to the air quality modeling to the Administrator of 

the Environmental Protection Agency. Air quality modeling for 

new or modified sources will be conducted in accordance with 

Subsection 33-15-14-02.4 of the North Dakota Administrative 

Code (NDAC). Public comment and transmittal of modeling data 

to EPA for new or modified sources will be in accordance with 

NDAC 33-15-14-02.6. 

When dispersion modeling is required to demonstrate the 

impact the source will have on the ambient air quality, the 

modeling must be done in accordance with Subsection 33-15-14­

02.4. This subsection requires conformance with 40 CPR 51 

Appendix W, Guideline on Air Quality Models, as supplemented 

by the "North Dakota Guideline for Air Quality Modeling 

Analysis." 
Paragraph a ofNDAC 33-15-14-02.4. 

a. Determination of the effects on ambient air quality as 

may be required under this section must be based on the 

applicable requirements specified in the "Guideline on Air 

Quality Models (Revised)" (United states environmental 

protection agency, office of air quality planning and 

standards, Research Triangle Park, North Carolina 27711) as 

supplemented by the "North Dakota Guideline for Air 

Quality Modeling Analyses"(North Dakota state department of 

health, division of environmental engineering air quality). 

These documents are incorporated by reference. 
SECTION III
 

STATE l.;AWS 

Appendix B of the Plan 
CHAPTER 23-25
 

AIR POLLUTION CONTROL
 

23-25-01. Definitions. For purposes of this 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 of life 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" means the surrounding outside air. 

5.	 "Asbestos abatement" means any demolition, renovation, salvage, repair, or 

construction activity which involves the repair, enclosure, encapsulation, removal, 

handling, or disposal of more than three square feet [0.28 square meter] or three 

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, except for individuals engaged in abatement at their private residence. 

8.	 "Emission" means a release of air contaminants into the ambient air. 

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 powder when 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 of air contaminants. 

12.	 "Lead-based paint" means paint or other surface coatings that contain lead equal to 

or in excess of 1.0 milligram per square centimeter or more than 0.5 percent by 

weight. 

13.	 "Person" means any individual, corporation, limited liability company, partnership, 

firm, association, trust, estate, public or private institution, group, agency, political 

subdivision of this state, any other state or political subdivision or agency thereof, 

and any legal successor, representative agency, or agency of the foregoing. 

Page No.1 
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 of this state, to foster the comfort and convenience of the 

people, and to facilitate the enjoyment of the natural attractions of this 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 consistent with the provisions of this chapter. 

2.	 There is hereby established an air pollution control advisory council, hereinafter 

referred to as the advisory council, of nine members to include the state health 

officer, the state geologist, the director of the department of transportation, and six 

other members to be appointed by the governor, one of whom must be a 

representative of county or municipal government, one a representative of the 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 of those four first appointed, two shall serve for two years and two for four 

years, and the lengths of their terms must be designated by the 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 officer of the council. 

5.	 The advisory council shall hold at least one regular meeting each year, and such 

additional meetings as the chairman deems necessary, at a time and place to be 

fixed by the chairman. Special meetings must be called by the chairman on the 

written request of any three members. Five members constitute a quorum. 

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 of this chapter and may make recommendations on its own 

initiative to the department concerning the administration of this chapter. 

23-25-03. Power and duties of the department. The department shall: 

1.	 Encourage the voluntary cooperation of persons or affected groups to achieve the 

purposes of this chapter. 

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

pollution in the state and the several parts thereof. 

3.	 Encourage and conduct studies, investigations, and research relating to air pollution 

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

Page NO.2 
4.	 Advise, consult, and cooperate with other public agencies and with affected groups 

and industries. 

5.	 Issue such orders as may be necessary to effectuate the purposes of this chapter 

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

6.	 Provide rules and regulations relating to the construction of any new direct or indirect 

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

contaminant source which the department determines will prevent the attainment or 

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

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

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

to make such determination. 

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 

air quality standards. 

9.	 Hold hearings relating to any aspect or matter in the administration of this chapter, 

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

of evidence. 

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 of 

the applicant but must be in the discretion of the 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 of emissions rights as provided by 

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

department determines there is a benefit to the state. 

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, part 745, 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 consistent with this chapter. 

23-25-03.1. Licensing of asbestos and lead-based paint contractors and 

certification of asbestos and lead-based paint workers. The department is charged with the 

responsibility of administering 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: 

Page NO.3 
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 of the Federal Clean Air 

Act, 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 certificates for cause after notice and opportunity for 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. 

6.	 To establish indoor environmental nonoccupational air quality standards for 

asbestos. 

7.	 To adopt and enforce rules as necessary for the implementation of this 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 

federal Asbestos Hazard Emergency Response Act of 1986 [Pub. L. 99-519; 100 Stat. 2970; 15 

U.S.C. 2641 et seq.], as amended, or the federal Clean Air Act [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 solely to effect a demolition 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 or standards under the Clean Air Act, or for which 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 or standards recommended or adopted under the 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 or standards. 

Page NO.4 
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 or standards affecting coal conversion and associated facilities, 

petroleum refineries, or oil and gas production and processing facilities which 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 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 by this 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 support the proposed rules or standards are available at the 

department for inspection and copying. If at 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 intends to rely 

and conduct an additional hearing if the first hearing has already been held. 

3.	 In this section: 

a.	 "Cost-benefit analysis" means both the analysis and the written document that 

contains: 

(1)	 A description and comparison of the benefits and costs of the rule and of 

the 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 of error 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 compliance with 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 uncertainty factors applicable to the 

information. 

b.	 "Risk assessment" means both the process used by the department to identify 

and quantify the degree of toxicity, 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 

Page NO.5 
an individual substance, activity, or condition. The risk assessment must 

include a discussion that characterizes the risks being assessed. The risk 

characterization mustinc\ude the following 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 of probability. 

(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 of the risk 

assessment. 

(4)	 When a risk assessment involves a choice of any significant assumption, 

inference, or model, the department in preparing the risk assessment 

shall: 

(a)	 Rely only upon environmental protection agency-approved air 

dispersion models. 

(b)	 Identify the assumptions, inferences, and models that materially 

affect the outcome. 

(c)	 Explain the basis for any choices. 

(d)	 Identify any policy decisions or assumptions. 

(e)	 Indicate the extent to which any model has been validated by, or 

conflicts with, empirical data. 

(f)	 Describe the impact of alternative 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 by the 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 23-01-04.1. 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 of this section for which new rules or standards have 

not been adopted, and the department shall have a reasonable amount of additional 

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 of this 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 sulfur dioxide, but does apply to any new rules governing 

such matters. 

Page NO.6 
23-25-04. Classification and reporting of air pollution sources. 

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 of such 

class or classes. Classifications made pursuant to this subsection may apply to the 

state as a whole or to any designated area of the state and must be made with 

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 or registration. 

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

designated by regulation, capable of causing or contributing to air pollution, either 

directly or indirectly, without a permit from the department or in violation of any 

conditions imposed by such permit. 

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

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

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

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

necessary. 

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

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

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

any person from the requirement that that person possess a valid contractor's 

license issued under chapter 43-07. 

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

renewal of certain air contaminant sources in lieu of the permit required pursuant to 

this section. 

6.	 The department may exempt by rule 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 contrary to section 23-25-01.1. 

23-25-04.2. Fees - Deposit in operating fund. The department by rule or regulation 

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

permits or registration certificates. The permit or registration certificate fees must be based on 

the anticipated cost of filing and processing the application, of taking action on the requested 

permit or registration certificate, and conducting an inspection program to determine compliance 

or noncompliance with the permit or registration certificate. Any moneys collected for permit or 

registration fees must be deposited in the department operating fund in the state treasury and 

must be spent subject to appropriation by the legislative assembly. 

23-25-05. Right of onsite 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 

Page No.7 
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 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 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 source tested. 

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 under this 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, other than emission data, to which 

the department has access under this chapter, if made public, would divulge trade 

secrets, the department shall consider the record, report, or information or particular 

portion thereof confidential in the administration of this 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, or when 

relevant in any proceeding under this chapter. 

23-25-07. Emission control requirements. Repealed by S.L. 1975, ch. 231, § 11. 

23-25-08. Administrative procedure and judicial review. Any proceeding under this 

chapter for: 

1.	 The issuance or modification of rules and regulations including emergency orders 

relating to control of air pollution; or 

2.	 Determining compliance with rules and regulations of the 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 protect the 

public health and safety, the department may, without notice or hearing, issue an order reciting 

the existence of such emergency and requiring that such action be taken as is necessary to meet 

this emergency. 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 of such hearing, the 

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 least thirty days prior to the date specified for the hearing. 

Page NO.8 
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 of not more than ten thousand dollars per day per violation, or by imprisonment 

for not more than one year, or both. If the conviction is for a violation committed 

after a first conviction of such person under this subsection, punishment must be by 

a fine of not more than twenty thousand dollars per day per violation, or by 

imprisonment for not more than 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 more than ten thousand 

dollars per day per violation, or by imprisonment for not more than 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 a fine of not more than ten thousand dollars per day per 

violation, or by imprisonment for not more than 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 subject to a civil 

penalty not to exceed ten thousand dollars per day per violation. 

5.	 Without prior revocation of any pertinent permits, the department, in accordance with 

the laws of this 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 of any provision of this chapter or any permit condition, rule, order, 

limitation, or other applicable requirement implementing this chapter. 

23-25-11. Regulation of odors - Rules. 

1.	 In areas located within a city or 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 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] of the property boundary of the 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 measure seven odor concentration units or higher as measured at any of the 

following locations: 

Page NO.9 
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 of the owner or operator of the 

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] of the source of the odor after the source of 

the odor has been built or established; 

b.	 At any point located beyond one-half mile [.80 kilometer] from the source of the 

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 odor easement; or 

c.	 If a county or township has zoned or established a setback distance for an 

animal feeding operation which is greater than one-half mile [.80 kilometer] 

under either section 11-33-02.1 or 58-03-11.1, or if the setback distance under 

subsection 7 is greater than 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 distance which was built or 

established before the animal feeding operation was estabHshed, unless the 

animal feeding operation has obtained an odor easement from the preexisting 

facility. 

3.	 An odor measurement maybe 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 operator at least fifteen days to 

implement the odor management plan. If the 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 least fifteen minutes. but no 

more than two hours. after the first 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 of a lagoon or waste 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 of odors 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 a specific limitation by rule. 

Page No. 10 
_ 

6.	 For purposes of this section, a public park is a park established by the federal 

government, the state, or a political subdivision of the state in the manner prescribed 

by law. For purposes of this section, a campground is a public or private area of 

land used exclusively for camping and open to the public for a fee 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 other animal 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 easement from the preexisting use that 

is closer. 

c.	 For purposes of this section: 

(1)	 One mature dairy cow, whether milking or dry, equals 1.33 animal units; 

(2)	 One dairy cow, heifer or bull, other than 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; 

Page No. 11 

-.. .. - ..--.- .'- -. .. ---.--.'"-.•.._---~:
(9) One turkey equals 0.0182 animal unit; 

(10)	 One chicken, other than a laying hen, equals 0.008 animal unit; 

(11)	 One laying hen equals 0.012 animal unit; 

(12)	 One duck equals 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 without triggering a higher setback distance. 

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 except as permitted under sections 11-33-02 and 58-03-11. 

Page No. 12 
SECTION IV 

REVISIONS TO 

THE AIR POLLUTION CONTROL RULES
 

OF THE STATE OF NORTH DAKOTA
 

Appendix C of the Plan 
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 

33-15-01-1 0 

ARTICLE 33-15 

AIR POLLUTION CONTROL 

General Provisions 

Ambient Air Quality Standards 

Restriction of Emission of Visible Air Contaminants 

Open Burning Restrictions 

Emissions of Particulate Matter Restricted 

Emissions of Sulfur Compounds Restricted 

Control of Organic 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 of Air Pollution Emergency Episodes 

Standards of Performance for New Stationary Sources 

Emission Standards for Hazardous Air Pollutants 

Designated Air Contaminant Sources, Permit to Construct, Minor 

- Source Permit to Operate, Title V Permit to Operate 

Prevention of Significant Deterioration of Air Quality 

Restriction of Odorous Air Contaminants 

Restriction of Fugitive Emissions 

Stack Heights 

Visibility Protection 

Control of Emissions From Oil and Gas Well Production Facilities 

Acid Rain Program 

Emissions Standards for Hazardous Air Pollutants for Source 

Categories 

Fees 

Standards for Lead-Based Paint Activities 

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 4/2009 
--

33-15-01-11 [Reserved] -.-	 \

33-15-01-12 Measurement of Emissions of Air Contaminants 

33-15-01-13 Shutdown and Malfunction of an Installation - Requirement 

for Notification
 

33-15-01-14 Time Schedule for Compliance
 

33-15-01-15 Prohibition of Air Pollution
 

33-15-01-16 Confidentiality of Records
 

33-15-01-17 Enforcement
 

33-15-01-18 Compliance Certifications
 

33-15-01-01. Purpose. It is the purpose of these air quality standards and 

emission regulations to state such requirements as shall be required 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 of this state, to 

foster the comfort and convenience for the people, and to facilitate the enjoyment 

of the natural attractions of this state. 

General Authority: NDCC 23-25-03 

Law Implemented: NDCC 23-25-01.1 

33-15-01-02. Scope. These air quality standards and emission regulations 

apply to any source or emission existing partially or wholly within North Dakota. 

J._ General Authority: NDCC 23-25-03 

Lawlmp~me~ed: NDCC2~25~3

33-15-01-03. Authority. The North Dakota state department of health has 

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

Dakota Century Code chapter 23-25. 

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 or when 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.	 "Air contaminant" means any solid, liquid, gas, or odorous substance or 

any combination thereof emitted to the ambient air. 

3.	 "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 or animal or plant life, or 

which unreasonably interferes with the enjoyment of life or property. 

4/2009	 -2
 
4.	 "Ambient air" means the surrounding outside air. 

5.	 "ASME" means the American society of mechanical engineers. 

6.	 "Coal conversion facility" means any of the 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 unit with a generator nameplate capacity of twenty-five 

megawatts or more. 

b.	 A plant, and all additions thereto, which processes or converts coal 

from its natural form into a form substantially different in chemical 

or physical properties, including coal gasification, coal liquefaction, 

and the manufacture of fertilizer and other products and which uses 

or is designed to use over five hundred thousand tons of coal per 

year. 

c.	 A coal beneficiation plant, and all additions thereto, which improve 

the physical. environmental, or combustion qualities of coal and are 

built in conjunction with a facility defined in subdivision a or b. 

7.	 "Control equipment" means any device or contrivance which prevents 

or reduces emissions. 

8.	 "Department" means the North Dakota state department of health. 

9.	 "Emission" means a release of air 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" means equipment. 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" if such alteration. rebuilding, or repair results in the emission of 

an additional or greater amount of air 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	 4/2009 
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 of burning fuel or other 

combustible material for the primary purpose of producing heat or power 

by indirect heat transfer. 

14.	 "Fugitive emissions" means solid airborne particulate matter, fumes, 

gases, mist, smoke, odorous matter, vapors, or any combination thereof 

generated incidental to an operation process procedure or emitted from 

any source other than through a well-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 other food 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 of combustion pass through a stack or stacks. 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 of a structure used for the destruction of 

garbage, rubbish, or other wastes by burning or to process salvageable 

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 or special waste. 

20.	 "Inhalable particulate matter" means particulate matter with an 

aerodynamic diameter less than or equal to a nominal ten 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 of creating or causing emissions. 

4/2009	 4 
22.	 "Multiple chamber incinerator" means any article, machine, equipment, 

contrivance, structure, or part of a structure used to burn combustible 

refuse, consisting of two or more refractory lined combustion furnaces 

in series physically separated by refractory walls, interconnected by gas 

passage ports or ducts and employing adequate parameters necessary 

for maximum combustion of the 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 pUblic and private facilities, and by commercial, 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 built or installed on or after July 1, 1970, unless specifically 

designated within this article, and installations existing at said stated 

time which are later altered, repaired, or rebuilt and result in the 

emission of an additional or greater amount of air 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 of combustion resulting from the burning are emitted 

directly into the ambient air without passing through an adequate stack, 

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, other than 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 of this state, any other state or political subdivision 

or agency thereof and any legal successor, representative agent, or 

agency of the foregoing. 

30.	 "Pesticide" includes: 

a.	 Any agent, substance, or mixture of substances intended to 

prevent, destroy, control, or mitigate 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	 4/2009 
department may declare to be a pest, except those bacteria, fungi, 

protozoa, or viruses on or in living man or other 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-harvest decay preventatives, and antioxidants. 

31. "Petroleum refinery" means an installation that 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 of unfinished petroleum derivatives. 

32. "PM2.

S " means particulate matter with an aerodynamic diameter less 

than or equal to a nominal two and five-tenths micrometers. 

33. "PM10 " means particulate matter with an aerodynamic diameter less 

than or equal to a nominal ten micrometers. 

34. "PM10 emissions" means finely divided solid or liquid material with an 

aerodynamic diameter less than or equal to a nominal ten micrometers 

emitted to the ambient air. 

35. "Pipeline quality natural gas" means natural gas that contains two 

grains, or less, of sulfur per one hundred standard cubic feet [2.83 cubic 

meters]. 

36. "Premises" means any property, piece of land or real estate, or bUilding. 

37. "Process weight" means the total weight ofall materials introduced into 

any specific process which may cause emissions. Solid fuels charged 

will be considered as part of the process weight, but liquid and gaseous 

fuels and combustion air will not. 

38. "Process weight rate" means the rate established as follows: 

a. For continuous or longrun steady state operations, the total process 

weight for the entire period of continuous operation or for a typical 

portion thereof, divided by the number of hours of such 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 

4/2009 6 
interpretation of this definition, the interpretation that results in the 

minimum value for allowable emission shall apply. 

39.	 "Radioactive waste" means solid waste containing radioactive material 

and subject to the requirements of article 33-10. 

40.	 "Refuse" means any municipal waste, trade waste. rubbish, or 

garbage, exclusive of industrial waste, special waste, radioactive 

waste, hazardous waste, and infectious waste. 

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 incinerator temperatures (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 or in part 

for the salvaging or reclaiming of any product or material. 

43.	 "Smoke" means small gasborne particles resulting from incomplete 

combustion, consisting predominantly, but not exclusively, of carbon, 

ash, and other combustible material, that form a visible plume in the air. 

44.	 "Source" means any property, real or personal, or person contributing 

to air pollution. 

45.	 "Source operation" means the last operation preceding emission which 

operation: 

a.	 Results in the separation of the air contaminant from the process 

materials or in the conversion of the process materials into air 

contaminants, as in the case of combustion 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.	 "Stack or chimney" means any flue, conduit, or duct arranged to conduct 

emissions. 

7	 4/2009 
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 of the tank; or when applied to a tank 

which is loaded from the side, means any fill pipe the discharge opening 

of which is entirely submerged when 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 

'f1oor 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, 

infectious waste, and similar substances. 

52.	 "Volatile organic compounds" means the definition of volatile organic 

compounds in 40 Code of Federal Regulations 51.100(s) as it exists on 

March 1, 2008, which is incorporated by reference. 

53.	 "Waste classification" means the seven classifications of waste as 

defined by the incinerator institute of America 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.
 

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 

4/2009	 8 
1'''''''''...... °C 

cal 

CdS 

cfm 

CFR 

cu ft 

CO 

CO2 

dcf 

dcm 

dscf 

dscm 

eq 

of 

ft 

g 

gal 

9 eq 

gr 

hr 

Hel 

Hg 

H2 O 

H2S 

H2SO4 

Hz 

in. 

oK 

k 

kg 

I 

Ipm 

Ib 

m 

.~ m3

- degree Celsius (centigrade) 

- calorie 

- cadmium sulfide 

- cubic feet per minute 

- code of federal regulations 

- cubic feet 

- carbon monoxide 

- carbon dioxide 

- dry cubic feet 

- dry cubic meter 

- dry cubic feet at standard conditions 

- dry cubic meter at standard conditions 

- equivalents 

- degree Fahrenheit 

- feet 

- gram 

- gallon 

- gram equivalents 

- grain 

- hour 

- hydrochloric acid 

- mercury 

- water 

- hydrogen sulfide 

- sulfuric acid 

- hertz 

inch 

- joule 

- degree Kelvin 

- 1,000 

- kilogram 

- liter 

- liter per minute 

- pound 

- meter 

- cubic meter 

9 4/2009 
1'--- meq - milliequivalent 

min - minute 

mg - milligram - 10-3 gram 

Mg - megagram - 106 gram 

ml - milliliter - 10-3 liter 

mm - millimeter - ,1 0-3 meter 

mol - mole 

mol.wt. - molecular weight 

mV - millivolt 

N2 - nitrogen 

N - newton 

ng - nanogram - 10-9 gram 

nm - nanometer - 10-9 meter 

NO - nitric oxide 

N02 - nitrogen dioxide 

NOx - nitrogen oxides 

- oxygen °2 

Pa - pascal 

PM - particulate matter 

PM2.5 - particulate matter with an aerodynamic diameter less than or equal 

to a nominal 2.5 micrometers 

PM10 - particulate matter with an aerodynamic diameter 10 micrometers 

ppb - parts per billion 

ppm - parts per million 

psia pounds per square inch absolute 

psig pounds per square inch gauge 

oR - degree Rankine 

s-sec - second 

scf - cubic feet at standard conditions 

scfh - cubic feet per hour at standard conditions 

scm - cubic meters at standard conditions 

scmh - cubic meters per hour at standard conditions 

S02 - sulfur dioxide 

S03 - sulfur trioxide 

SOx - sulfur oxides 

,,- sq ft - square feet 

4/2009 10 
std - at standard conditions 

TSP - total suspended particulate 

~g - microgram - 10-6 gram 

V - volt 

W - watt 

n - ohm 

History: Amended effective January 1, 1989; January 1, 2007; April 1,2009. 

General Authority: NDCC 23-25-03 

Law Implemented: NDCC 23-25-03 
33-15-01-13. Shutdown and malfunction of an installation ­

Requirement for notification. 
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.	 Identification of the specific facility to be taken out of service as well 

as its location and permit number. 

b.	 The expected length of time that the air pollution control equipment 

will be out of service. 

c.	 The nature and estimated quantity of emissions of air pollutants 

likely to be emitted during the shutdown period. 

d.	 Measures such as the use of off-shift labor and equipment that will 

be taken to minimize the length of the shutdown period. 

e.	 The reasons that it would be impossible or impractical to shut down 

the source operation during the maintenance period. 

f.	 Nothing in this subsection shall in any manner be construed as 

authorizing or legalizing the emission of air contaminants in excess 

of the rate allowed by this article or a permit issued pursuant to this 

article. 

2.	 Malfunctions. 

a.	 When a malfunction in any installation occurs that can be expected 

to last longer than twenty-four hours and cause the emission of air 

contaminants in violation of this article or other applicable rules and 

regulations, the person responsible for such 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 a written report to the department which 

includes evidence that: 

4/2009	 14 
-!.- (1)	 The excess emiSSions were caused by a sudden, 

unavoidable breakdown of technology that was beyond 

the reasonable control of the owner or operator. 

(2)	 The excess emissions could not have been avoided by better 

operation and maintenance, did not stem from an activity or 

event that could have been foreseen and avoided or planned 

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 labor and overtime as needed and possible. 

(5)	 All practicable steps were taken to minimize the potential 

impact of the excess emissions on ambient air quality. 

(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 of the end of the 

calendar quarter in which the malfunction occurred or within thirty 

days of a written request by the department, whichever is sooner. 

The burden of proof is on the owner or operator of the 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 

whether to 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 of a source that uses an 

alternative method shall have the burden of demonstrating that the 

15	 4/2009 
method is accurate. Timely repair of the 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
 

-

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 

CHAPTER 33-15-02 

AMBIENT AIR QUALITY STANDARDS 

Scope 

Purpose 

Air Quality Guidelines 

Ambient Air Quality Standards 

Methods of Sampling and Analysis 

Reference Conditions 

Concentrations of Air Contaminants in the Ambient Air 

Restricted 
Table 1. AMBIENT AIR QUALITY STANDARDS 

Standards 

Air Contaminants (Maximum Permissible Concentrations) 

Particulates 150 micrograms per cubic meter, 24-hour average 

Inhalable concentration. The standard is attained when the 

Particulate expected number of days per calendar year with a 

PM10 24-hour average concentration above 150 micrograms 

per cubic meter, as determined in accordance with 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 met when the annual 

arithmetic mean concentration, as determined in 

accordance with 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 met when the 98th 

percentile 24-hour concentration, as determined in 

accordance with 40 CFR 50, Appendix N, is less than 

or equal to 35 micrograms per cubic meter. 

Sulfur 0.023 parts per million (60 micrograms per cubic meter of 

Dioxide	 air), maximum annual arithmetic mean concentration 

0.099	 parts per million (260 micrograms per cubic meter of .........
 air), maximum 24-hour average concentration 

0.273	 parts per million (715 micrograms per cubic meter of 

air), maximum 1-hour average concentration 

Hydrogen 10.0 parts per million (14 milligrams per cubic meter of air), 

Sulfide maximum instantaneous (ceiling) concentration not to 

be exceeded 

0.20	 parts per million (280 micrograms per cubic meter of 

air), maximum 1-hour average concentration not to be 

exceeded more than once per month 

0.10	 parts per million (140 micrograms per cubic meter of 

air), maximum 24-hour average concentration not to be 

exceeded more than once per year 

0.02	 parts per million (28 micrograms per cubic meter of air), 

maximum arithmetic mean concentration averaged over 

three consecutive months 

Carbon 9	 parts per million (10 milligrams per cubic meter of air), 

Monoxide	 maximum 8-hour concentration not to be exceeded 

more than once per year 

35	 parts per million (40 milligrams per cubic meter of air), 

maximum 1-hour concentration not to be exceeded 

more than once per year ,~,

4/2009	 4
 
Ozone 0.075 parts per rnillion (147 rnicrograms per cubic meter of 

air) daily maximum 8-hour average concentration. The 

standard is met when the three-year average of the 

annual fourth-highest daily maximum 8-hour average 

concentration at an ambient air quality monitoring site 

is less than or equal to 0.075 ppm, as determined in 

accordance with 40 CFR 50, Appendix P. 

Nitrogen 

Dioxide 

0.053 parts per million (100 micrograms per cubic meter of 

air), maximum annual arithmetic mean 

Lead 1.5 micrograms per cubic meter of air, maximum arithmetic 

mean averaged over a calendar quarter 

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

Table	 2. NATIONAL AMBIENT AIR QUALITY STANDARDS 

Air Contaminant Standards 

(Maximum Permissible Concentrations) 

Sulfur oxides 0.030	 parts per million (80 micrograms per cubic 

(sulfur dioxide)	 meter of air) maximum annual arithmetic mean 

concentration, not to be exceeded in a calendar 

year 

0.14	 parts per million (365 micrograms per cubic meter 

of air) maximum 24-hour concentration, not to be 

exceeded more than once per calendar year 

0.5	 parts per million (1300 micrograms per cubic 

meter of air) maximum 3-hour concentration, not 

to be exceeded more than once per calendar year 

History: Amended effective September 1, 1998. 

5
 
CHAPTER 33-15-05
 

EMISSIONS OF PARTICULATE MATTER RESTRICTED
 

Section 

33-15-05-01 

33-15-05-02 

33-15-05-03 

33-15-05-03.1 

33-15-05-03.2 

33-15-05-03.3 

33-15-05-04 

Restriction of Emission of Particulate Matter From Industrial 

Processes 

Maximum Allowable Emission of Particulate Matter From 

Fuel Burning Equipment Used for Indirect Heating 

Incinerators [Repealed) 

Infectious Waste Incinerators [Repealed] 

Refuse Incinerators 

Other Waste Incinerators 

Methods of Measurement 
33-15-05-03.2. Refuse incinerators. 
2.	 Existing trash incinerators. This subsection applies to any owner or 

operator of an incinerator for trash of any design capacity existing on 

August 1, 1995. 

a.	 Prohibited waste. No infectious waste, radioactive waste, 

hazardous waste, special waste, industrial waste, or any other 

solid waste may be burned in an incinerator designed for trash 

unless the incinerator's performance, design, and operating 

standards for those solid wastes are also met. 

b.	 Operator training. The owner or operator of an incinerator for trash 

shall provide both written and oral instructions for each operator in 

the proper operation of the incinerator. 

c.	 Recordkeeping and reporting. 

(1)	 The owner or operator of an incinerator for trash shall keep 

a log' indicating the dates and approximate quantities of 

waste received from an onsite source, and from each offsite 

source, including the transporter. The log shall be kept and 

maintained for a minimum period of three years from the 

date waste is received. 

(2)	 An owner or operator of an incinerator for trash shall record 

in the log any operational error or failure of one-hour or 

more duration of combustion equipment, emission control 

equipment, waste charging equipment, or monitoring 

equipment. 

(3)	 When requested by the department, the owner or operator of 

an incinerator for trash shall provide a summary of the daily 

burning and hours of operation. 
CHAPTER 33-15-14
 

DESIGNATED AIR CONTAMINANT SOURCES, PERMIT TO CONSTRUCT,
 

MINOR SOURCE PERMIT TO OPERATE, TITLE V PERMIT TO OPERATE
 

Section 

33-15-14-01 Designated Air Contaminant Sources 

33-15-14-01.1 Definitions 

33-15-14-02 Permit to Construct 

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

33-15-14-04 Permit Fees [Repealed] 

33-15-14-05 Common Provisions Applicable to Both Permit to Construct 

and Permit to Operate [Repealed] 

33-15-14-06 

33-15-14-07 

Title V Permit to Operate 

Source· Exclusions From Title 

Requirements 

V Permit to Operate 

33-15-14-01. Designated air contaminant sources. Pursuant to 

subsection 1 of North Dakota Century Code section 23-25-04, stationary sources 

within the following source categories are designated as air contaminant sources 

c~pable of causing or contributing to air pollution, either directly or indirectly. 
10.	 Any source which emits a contaminant subject to a national emission 

standard for hazardous air pollutants (40 CFR 61). 

11.	 Any source which is subject to review under federal prevention of 

significant deterioration of air quality regulations (40 CFR 51.166). 

12.	 Any source which is determined by the department to have an emission 

which affects state ambient air quality standards or the other provisions 

of chapter 33-15-02. 

13.	 Any source subject to title V permitting requirements in section 33-15­

, 14-06. 

14.	 Any major source to which a national emission standard for hazardous 

air pollutants for source ,categories (40 CFR 63) would apply. 

15.	 Other sources subject to a standard or requirement under the Federal 

Clean Air Act as amended. 

History; Amended effective October I" 1987; March I, 1994; August 1, 1995;
 

April 1, 2009.
 

General Authority: NDCC 23-25-03, 23-25-04, 23-25-04.1
 

Law Implemented: NDCC 23-25-04, 23-25-04.1
 

-\ 
CHAPTER 33-15-15
 

PREVENTION OF SIGNIFICANT DETERIORATION OF AIR QUALITY
 

Section 

33-15-15-01 General Provisions [Repealed] 

33-15-15-01.1 Purpose 

33-15-15-01.2 Scope 

33-15-15-02 Reclassification 

33-15-15-01. General provisions. Repealed effective February 1, 2005. 

33-15-15-01.1. Purpose. The purpose of this chapter is to adopt by 

reference federal provisions for the prevention of significant deterioration program 

in North Dakota. The department will continue to implement the prevention of 

significant deterioration program as part of the state implementation plan. 

History: Effective February 1, 2005. 

General Authority: NDCC 23-25-03, 23-25-04.1 

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

33-15-15-01.2. Scope. The provisions of 40 Code of Federal Regulations 

part 52, section 21, paragraphs· (a)(2) through (e), (h) through (r), (v), (w). (aa), 

and (bb) as they exist on August 1. 2007, are incorporated by reference into this 

chapter. This includes revisions to the rules that were effective by this date but 

had not been published in the Code of Federal Regulations- yet. Any changes or 

additions to the provisions are listed below the affected paragraph. 

For purposes of this chapter, administrator means the department except 

for those duties that cannot be delegated by the United States environmental 

protection agency. For those duties listed below, or any others that cannot 

be delegated, administrator means the administrator of the United States 

environmental protection agency: 

(b)(17) - Definition of federally enforceable. 

(b)(37)(i) - Definition of repowering. 

(b)(42) - Definition of clean unit. 

(b)(43) - Definition of prevention of significant deterioration. 

(b)(48)(ii)(c) - Definition of baseline actual emissions. 

(b)(50)(i) - Definition of regulated NSR pollutant. 

(1 )(2) - Air quality models. 

(p)(2) - Consultation with the federal land manager. 

1 4/2009 
(y)(4)(i) - First sentence only - Comparison to previous BACT and LAER 

determinations. 

For purposes of this chapter, permit or approval to construct means a permit 

to construct. The procedures for obtaining a permit to construct are specified in 

section 33-15-14-02 and this chapter. When there is a conflict in the requirements 

between this chapter and section 33-15-14-02, the requirements of this chapter 

shall apply. 

For purposes of this chapter, the term "40 CFR 52.21" is replaced with "this 

chapter". 

40 CFR 

52.21 (b)(2)(a) 

The following is deleted: 

Routine maintenance, repair and replacement shall 

include, but not be limited to, any activity(s) that meets 

the requirements of the equipment replacement provisions 

contained in paragraph (cc). 

40 CFR 

52.21 (b)(3)(iii)(a) 

The words "the administrator or other-reviewtf.lg 

authority" are replaced with "the department or the 

administrator of the United States environmental 

protection agency". 

40 CFR 

52.21 (b)(14) 

The following is added: 

(v) The department shall provide a list of baseline 

dates for each contaminant for each baseline area. 

40 CFR 

52.21 (b)(15) 

The following is added: 

(iv) North Dakota is divided into two intrastate areas 

under section 107(d)(1 )(0) or (E) of the Federal 

Clean Air Act [Pub. L. 95-95]: the Cass County 

portion of region no. 130, the metropolitan 

Fargo-Moorhead interstate air quality control 

region; and region no. 172, the North Dakota 

intrastate air quality control region (the remaining 

fifty-two counties). 

40 CFR 

52.21 (b)(22) 

The following is added: 

Designating an application complete for purposes 

of permit processing does not preclude the 

department from requesting or accepting any 

additional information. 

40 CFR 

52.21 (b)(29) 

The following is added: 

This term does not include effects on integral vistas. 

4/2009 2
 
40 CFR 

52.21 (b)(30) 

40 CFR 

52.21 (b)(43) 

40 CFR 

52.21 (b)(48)(ii) 

40 CFR 

52.21(b)(51) 

40 CFR 

52.21 (b)(53) 

40 CFR 

52.21 (b)(54) 

40 CFR 

52.21 (b)(58) 

40 CFR 52.21 (d) 

40 CFR 52.21(e) 

The term section 51.1 OO(s) of this chapter is deleted and 

replaced with "40 CFR 51.1 OO(s)". 

The paragraph is deleted in its entirety and replaced with 

the following: 

Prevention of significant deterioration (PSD) program 

means a major source preconstruction permit program 

administered by the department that has been approved 

by the administrator of the United States environmental 

protection agency and incorporated into the state 

implementation plan pursuant to 40 CFR 51.166 to 

implement the requirements of that section. Any permit 

issued by the department under the program is a major 

NSR permit. 

The following words are deleted: "by the 

administrator for a permit required under this 

section or". 

The paragraph is deleted in its entirety and replaced with 

the following: 

Reviewing authority means the department. 

This paragraph is deleted in its entirety and replaced with 

the following: 

Lowest achievable emission rate (LAER) has the meaning 

given in 40 CFR 51.165(a)(1)(xiii) which is incorporated by 

reference. 

This paragraph is deleted in its entirety and replaced with 

the following: 

Reasonably available control technology (RACT) has the 

meaning given in 40 CFR 51.100(0) which is incorporated 

by reference. 

This paragraph is deleted in its entirety. 

The paragraph is deleted and replaced with the following: 

No concentration of a contaminant shall exceed 

the ambient air quality standards in chapter 

33-15-02 for those areas subject to regulation 

under this article and the national ambient air 

quality standards in all other areas of the United 

States. 

The following is added: 

3 4/2009
 
40 CFR 52.21 (h) 

40 CFR 

52.21 (i)(5)(ii) 

40 CFR 52.21 (i) 

40 CFR 

52.21 (k)(1) 

40 CFR 

52.21(1)(1) 

4/2009
 

(5)	 The class I areas in North Dakota are the 

Theodore Roosevelt National Park - north 

and south units and the Theodore Roosevelt 

Elkhorn Ranch Site in Billings County - and 

the Lostwood National Wilderness Area in 

Burke County. 

The paragraph is deleted and replaced with the 

following: 

The stack height of any source subject to this 

chapter must meet the requirements of chapter 

33-15-18. 

In this paragraph the reference to paragraph 

(i)(8)(i) is replaced with (i)(5)(i). 

The following subparagraphs are added: 

(11)	 The class I area increment limitations of the Theodore 

Roosevelt Elkhorn Ranch Site of the Theodore 

Roosevelt National Park shall apply to sources or 

modifications for which complete applications were 

filed after July 1, 1982. The impact of emissions from 

sources or modifications for which permits under this 

chapter have been issued or complete applications 

have already been filed will be counted against the 

increments after July 1, 1982. 

(12) Provided that all necessary requirements of this article 

have been met, permits will be issued on a first-come, 

first-served basis as determined by the completion 

date of the applications. 

This subparagraph is deleted and replaced with 

the following: 

(1)	 Any ambient air quality standard in chapter 33-15-02 

for those areas subject to regulation under this article 

and the national ambient air quality standards in all 

other areas of the United States; or 

This subparagraph is deleted and replaced with 

the following: 

All estimates of ambient concentrations required under this 

chapter shall be based on applicable air quality models, 

technical data bases (including quality assured air quality 

monitoring results), and other requirements specified in 

appendix w of 40 CFR 51 ("guideline on air quality models" 

as it exists on July 1, 2007) as supplemented by the "North 

Dakota guideline for air quality modeling analyses". These 

documents are incorporated by reference. Technical inputs 

for these models shall be based upon credible technical 

data approved in advance by the department. In making 

such determinations, the department shall review such 

4 
technical data to determine whether it is representative of 

actual source, meteorological, topographical, or local air 

quality circumstances. 

40 CFR 

52.21 (m)(3) 

"Appendix B to part 58 of this chapter" is replaced 

with 40 CFR 58, appendix B. 

40 CFR 

52.21(0)(1) 

The following is added: 

The visibility analysis shall be prepared in 

accordance with chapter 33-15-19. 

40 CFR 

52.21(p)(6) 

"paragraph (q)(4)" is replaced with 

"paragraph (p)(4)" and "(q)(7)" is replaced 

with "(p)(7)". 

40 CFR 

52.21 (p)(7) 

"paragraph (q)(7)" is replaced with 

"paragraph (p)(7)". 

40 CFR 

52.21 (p)(8) 

"paragraphs (q)(5) or (6)" is replaced with 

"paragraphs (p)(5) or (6)". 

40 CFR 52.21 (p) The following is added: 

(9) Notice to the United States environmental 

protection agency. The department shall 

transmit to the administrator of the United 

States environmental protection agency 

through the region VIII regional administrator 

a copy of each permit application relating to a 

major stationary source or major modification 

received by the department and provide notice 

to the administrator of every action related to 

the consideration of such permit. 

40 CFR 52.21 (q) This paragraph is deleted and replaced with the 

following: 

q. Public participation. 

(1)	 Within thirty days after receipt of an application to construct a 

source or modification subject to this chapter, or any addition 

to such application, the department shall advise the applicant 

as to the completeness of the application or of any deficiency 

in the application or information submitted. In the event of 

such a deficiency, the date of receipt of the application, for the 

purpose ofthis chapter, shall be the date on which all required 

information to form a complete application is received by the 

department. 

(2)	 With respect to a completed application, the department shall: 

(a)	 Within one year after receipt, make a preliminary 

determination whether the source should be approved, 

5	 4/2009 
",­ approved with conditions, or disapproved pursuant to 

the requirements of this chapter. 

(b) Make available, in at least one location in each region 

in which the proposed source or modification would 

be constructed, a copy of all materials submitted by 

the applicant, a copy of the department's preliminary 

determination, and a copy or summary of other 

materials, if any, considered by the department in 

making a preliminary determination. 

(c) Notify the public, by prominent advertisement in 

newspapers of general circulation in each region in 

which the proposed source or modification would 

be constructed, of the application, the preliminary 

determination, the degree of increment consumption 

that is expected from the source or modification, and the 

opportunity for comment at a public hearing as well as 

written public comment on the information submitted by 

the owner or operator and the department's preliminary 

. determination on the approvability of the source. The 

department shall allow at least thirty days for pUblic 

comment. 

(d) Send a copy of the notice required in subparagraph c 

to the applicant, the United States environmental 

protection agency administrator, and to officials 

and agencies having cognizance over the location 

where the source or modification will be situated as 

follows: the chief executive of the city and county 

where the source or modification would be located; any 

comprehensive regional land use planning agency; and 

any state, federal land manager, or Indian governing 

body whose lands may be significantly affected by 

emissions from the source or modification. 

(e) Hold a pUblic hearing whenever, on the basis of written 

requests, a significant degree of public interest exists 

or at its discretion when issues involved in the permit 

decision need to be clarified. A public hearing would 

be held during the public comment period for interested 

persons, including representatives of the United States 

environmental protection agency administrator, to 

appear and submit written or oral comments on the air 

quality impact ofthe source or modification, alternatives 

to the source or modification, the control technology 

required, and other appropriate considerations. 

4/2009 6 
40 CFR 52.21 (r)(2) 

40 CFR 52.21 (r)(6) 

40 CFR 52.21 (v)(1) 

40 CFR 

52.21 (v)(2)(iv)(a) 

(f)	 Consider all public comments submitted in writing 

within a time specified in the public notice required 

in subparagraph c and all comments received at any 

pUblic hearing conducted pursuant to subparagraph e 

in making its final decision on the approvability of 

the application. No later than thirty days after the 

close of the public comment period, the applicant may 

submit a written response to any comments submitted 

by the public. The department may extend the time 

to respond to comments based on a written request 

by the applicant. The department shall consider 

the applicant's response in making its final decision. 

All comments must be made available for public 

inspection in the same locations where the department 

made available preconstruction information relating to 

the source or modification. 

(g)	 Make a final determination whether the source should 

be approved, approved with conditions, or disapproved 

pursuant to the requirements of this chapter. 

(h)	 Notify the applicant in writing of the department's 

final determination. The notification must be made 

available for public inspection in the same locations 

where the department made available preconstruction 

information and public comments relating to the source 

or modification. 

The following is added: 

In cases of major construction projects involving long 

lead times and substantial financial commitments, the 

department may provide by a condition to the permit 

to construct a time period greater than eighteen 

months when such time extension is supported by 

sufficient documentation by the applicant. 

The word "reasonable" is deleted. 

This sUbparagraph is deleted and replaced with 

the following: 

(1)	 An owner or operator of any proposed major 

stationary source or major modification may request 

the department to approve a system of innovative 

control technology. 

This subitem is deleted and replaced 

with the following: 

7	 4/2009
 
(a) Cause or contribute to a violation of an applicable 

ambient air quality standard in chapter 33-15-02 

for those areas subject to regulation under 

this article and the national ambient air quality 

standards in all other areas of the United States; 

or 

40 CFR 

52.21(w)(1) 

This subparagraph is deleted and replaced with the 

following: 

(1) Any permit issued under this chapter or a prior version 

of this chapter shall remain in effect, unless and until 

it expires under 40 CFR 52.21(r) or is rescinded. 

40 CFR 

52.21(aa)(15) 

This paragraph is deleted in its entirety and 

replaced with the following: 

(i) The department shall not issue a PAL that 

does not comply with the requirements 

in paragraphs (aa)(1) through (15) of 

this section after the administrator of the 

environmental protection agency has 

approved regulations incorporating these 

requirements into the state implementation 

plan. 

(ii) The department may supersede any PAL 

which was established prior to the date of 

approval of the state implementation plan 

by the administrator of the United States 

environmental protection agency with a 

PAL that complies with the requirements 

of paragraphs (aa)(1) through (15) of this 

section. 

History: Effective February 1, 2005; amended effective April 1, 2009. 

General Authority: NDCC 23-25-03, 23-25-04.1 

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

33-15-23-01 

33-15-23-02 

33-15-23-03 

33-15-23-04 

33-15-23-05 

CHAPTER 33-15-23
 

FEES
 

Definitions 

Permit to Construct Fees 

Minor Source Permit to Operate Fees 

Major Source Permit to Operate Fees 

Phase I Substitution Units 
33-15-23-03. Minor source permit to operate fees. 

1.	 The owner or operator of each installation subject to a permit issued 

under section 33-15-14-03 shall pay an annual permit fee based on the 

following table: 

Classification Annual Fee ($) 

Designated 300 

Monitor (CEMS or Ambient Site) BOO/CEMS or Site 

Other 100 

State and local government o 

Exempt o 

The following criteria are used to classify sources for determining minor 

source annual fees: 

4/2009	 2
 
Designated: A source that is designated for scheduled 

inspections. 

Monitor: A charge in addition to the annual fee for any 

source operating a continuous emission monitor 

system (CEMS) or an ambient monitoring site. 

Other: As designated by the department. 

State and local Any installation owned by the state of North 

government: Dakota or a local government. 

Exempt: As designated by the department. 

2.	 The following activities conducted by the department are not included 

in the annual costs and will be charged to affected sources based on 

the actual costs incurred by the department: 

a.	 Observation of source or performance specification testing, or both. 

b.	 Audits of source operated ambient air monitoring networks. 

An accounting of the actual costs incurred under this subsection must 

accompany the notice of the annual permit fee. 

3.	 Annual emissions are derived using representative source test data, 

"compilation of air pollution emission factors (AP-42)" or other reliable 

data. 

4.	 The classification of "other" and "exempt" shall be designated by the 

department on a case-by-case basis. 

5.	 The department shall send a notice, identifying the amount of the annual 

permit fee, to the owner or operator of each affected source. The fee is 

due within sixty days following the date of such notice. 

History: Effective August 1, 1995; amended effective April 1, 2009. 

General Authority: NDCC 23-25-03, 23-25-04.2 

Law Implemented: NDCC 23-25-04.2 
SECTION V
 

LEGAL OPINION OF THE ATTORNEY GENERAL
 

Appendix D of the Plan 
STATE OF NORTH DAKOTA 

OFFICE OF ATTORNEY GENERAL 

STATE CAPITOL 

600 E BOULEVARD AVE DEPT 125 

BISMARCK, ND 58505-0040 

(701) 328-2210 FAX (701) 328-2226 

Wayne Stenehjem www.ag.nd.gov 

ATIORNEY GENERAL 

OPINION 

February 2, 2009 

Mr. L. David Glatt, P.E. 

Chief, Environmental Health Section 

North Dakota Department of Health 

918 E Divide Ave 

Bismarck, NO 58501-1947 

Dear Mr. Glatt: 

The Office of Attorney General has examined the proposed amendments to N.D.AC. 

art. 33-15 concerning air pollution control, along with the notice of the proposed rules, 

-,- the publication of that notice, and the filing of that notice with the Legislative Council. 

This office has also determined that 1) a written record of the agency's consideration of 

any comments to the proposed rules was made, 2) a regulatory analysis was issued, 3) 

a takings assessment was prepared, 4) a small entity regulatory analysis and an 

economic impact statement were not prepared because these rules are mandated by 

federal law or will not affect any small entities, 5) a stringency determination and 

justification was prepared pursuant to N.D.C.C. § 23-01-04.1, 6) an analysis concerning 

rules more strict than federal standards under N.D.C.C. § 23-25-03.3 was prepared, 

and 7) the proposed rules are within the agency's statutory authority. 

These administrative rules are in compliance with N.D.C.C. ch. 28-32 and are hereby 

approved as to their legality. Upon final adoption, these rules may be filed with the 

Legislative Council. . 

Sincerely, 

~~ehjem
 Attorney General 

eee/vkk 

cc: John Walstad, Legislative Council