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Fulton, Abby

From: Bachman, Tom A. <tbachman@nd.gov>

Sent: Monday, April 13, 2015 7:18 AM

To: Fulton, Abby

Subject: RE: Request for Clarifications_ND iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAQQS

Abby: 

Following your questions in your email below are our responses (in red). The open 

burning issue is addressed in Sections 2.7, 8.2 and 10.1-10.4 of our SIP; however, our 

response may be a little clearer than the SIP. Also, our definition of “air pollution” is so 

broad that it does cover the environment. 

If you have any questions, please feel free to contact me. 

Tom Bachman, P.E.

Manager; Air Quality 

Planning Program 

ND Dept. of Health 

(701) 328-5188 

From: Fulton, Abby [mailto:Fulton.Abby@epa.gov] 

Sent: Wednesday, April 08, 2015 11:47 AM 

To: Bachman, Tom A. 

Subject: Request for Clarifications_ND iSIP 2008 ozone, 2008 Pb, and 2010 NO2 NAQQS 

Tom, 

I am working on North Dakota’s infrastructure SIP for the 2008 ozone, 2008 lead, and 2010 NO2 NAAQS and am asking 

for a couple points of clarification: 

1. Under element (E)(iii) Oversight of Local Governments and Regional Activates, a “state may authorize a local or 

regional agency to carry out the SIP or a portion the SIP within that agency’s jurisdiction, if the SIP demonstrates 

that the local agency has the necessary legal authority... the infrastructure SIP submission needs to also provide 

assurances that the state air agency retains responsibility for ensuring adequate implementation of the SIP” (p. 

44, 2013 iSIP guidance, attached). ND’s certifications state that local Health Districts have been delegated the 

authority for approval of open burning requests. Could you please point to where the department has legal 

authority to 

delegate these requests to local Health Districts as well as any provisions allowing the State to retain full 

authority and responsibility to enforce the SIP in local jurisdictions? 

The Health Department is “designated as the agency to administer and coordinate a statewide 

program of air pollution control.” N.D.C.C. § 23-25-02(1). As part of its program, the Department 

has adopted rules addressing open burning. N.D. Admin. Code ch. 33-15-04. Under these 

rules, the Department must, in certain circumstances, approve open burning in advance. N.D. 

Admin. Code § 33-15-04-02. 
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The State Health Officer may hold public health units (i.e. health districts) responsible for 

enforcing the Department’s rules. N.D.C.C. § 23-01-05(2). So, the Department, through its 

State Health Officer, may delegate to public health units the authority to approve open burning 

requests. Although the Department has delegated the authority to approve requests, it has not 

delegated the authority to take enforcement action against a person violating the Department’s 

open burning rules. 

As with any other violation of its air pollution requirements, the Department has the authority to 

enforce its open burning rules “by all administrative and judicial procedures.” N.D.C.C. § 23-25-

03(5). The Department’s authority includes the ability to seek an injunction or to impose 

N.D.C.C. § 23-25-10’s penalties on any person violating its rules. 

2. Element (G) Emergency Powers requires SIPs to “provide for authority comparable to that in section 303. 

Section 303 of the CAA provides authority to the EPA Administrator to seek a court order to restrain any source 

from causing or contributing to emissions that present and ‘imminent and substantial endangerment to public 

health or welfare, or the environment’ ” (2013 guidance, p. 47). Since the ND statutes cited in your certifications 

do not specifically cover “environment” but rather public health, safety, and welfare, we had to craft a bit of a 

discussion for element (G) to show that the State has comparable authority to section 303. Although not 

included in your certifications, we indicate that under NDCC 23-25-10.5, “the department has the authority to 

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.” I wanted to verify that any air pollution discharge creating an emergency situation 

would constitute a violation of the chapter and therefore give the NDDH the authority to seek judicial actions 

during emergency situations. If this is inaccurate, please let me know and I will remove this citation from our 

notice. 

N.D. Admin. Code § 33-15-01-15(1) makes it unlawful to “permit or cause air pollution.” “Air 

pollution” is defined as “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.” N.D.C.C. § 23-

25-01(2); N.D. Admin. Code § 33-15-01-04(3). A person causing or contributing to emissions that 

endanger public health, welfare, or the environment, would be causing “air pollution” within the 

meaning of North Dakota law, and would therefore be in violation of N.D. Admin. Code § 33-15-01-

15(1). This could occur in either an emergency or non-emergency situation. 

Under N.D.C.C. § 23-25-10(5), the Department has the authority to bring an action to enjoin a 

violation of N.D.C.C. ch. 23-25 or its rules. So, the Department may seek a court order to restrain 

a source from causing or contributing to emissions that endanger public health, welfare, or the 

environment. In an emergency, this would probably take the form of a preliminary injunction or 

temporary restraining order. See N.D.C.C. § 32-06-02; N.D.R. Civ. P. 65. 

Please let me know if you have any questions on the above requests. I am happy to setup a time to discuss this over the 

phone if you like. Just let me know. 

Thank you. 
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Abby L. Fulton 

Air Quality Planning Unit 

U.S. EPA, Region 8 

1595 Wynkoop Street 

Denver, CO 80202-1129 

fulton.abby@epa.gov

(303) 312-6563