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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 ou r 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. Als o, our definition of “air pollution” is so broad that it does cover the environment.

If you have any questions, please feel free to cont act 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, 200 8 Pb, and 2010 NO2 NAQQS

Tom, I am working on North Dakota’s infrastructure SIP f or the 2008 ozone, 2008 lead, and 2010 NO2 NAAQS an d am asking for a couple points of clarification:

1. Under element (E)(iii) Oversight of Local Governmen ts and Regional Activates, a “state may authorize a local or regional agency to carry out the SIP or a portion t he SIP within that agency’s jurisdiction, if the SI P demonstrates that the local agency has the necessary legal autho rity... the infrastructure SIP submission needs to al so provide assurances that the state air agency retains respon sibility for ensuring adequate implementation of th e SIP” (p. 44, 2013 iSIP guidance, attached). ND’s certificati ons state that local Health Districts have been del egated the authority for approval of open burning requests. Co uld you please point to where the department has le gal authority to delegate these requests to local Health Districts a s well as any provisions allowing the State to reta in full authority and responsibility to enforce the SIP in local jurisdictions?



### The Health Depa rtment is “designated as the agency to administer a nd coordinate a statewide program of air pollution control.” N.D.C.C. § 23-2 5-02(1). As part of its program, the Department has adopted rules addressing open burning. N.D. Ad min. Code ch. 33-15-04. Und er these rules, the Department must, in certain circumstance s, approve open burning in advance. N.D. Admin. Code § 33-15-04-02.2



### The State Health Officer may hold public health uni ts (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 del egated the authority to take enforcement action aga inst a person violating the Department’s open burning rules.

As with any other violation of its air pollution re quirements, the Department has the authority to enforce its open burning rules “by all administrati ve 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 viola ting its rules.

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

. Section 303 of the CAA provides authority to the EP A Administrator to seek a court order to restrain a ny source from causing or contributing to emissions that pres ent and ‘imminent and substantial endangerment to p ublic health or welfare, or the environment’ ” (2013 guidance, p. 47). Since the ND statutes cit ed 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 h as comparable authority to section 303. Although no t included in your certifications, we indicate that u nder NDCC 23-25-10.5, “the department has the autho rity 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 cond ition, rule, order, limitation, or other applicable requirement implementing this chapter.” I wanted to verify tha t any air pollution discharge creating an emergency situation would constitute a violation of the chapter and the refore 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 outdo or atmosphere of one or more air contaminants in

su ch quantities and duration as is or may be injuriou s to human health, welfare, or property, animal or plant life, or which unreasonably interferes wit h the enjoyment of life or property.” N.D.C.C. § 2 3- 25-01(2); N.D. Admin. Code § 33-15-01-04(3). A per so n 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 restra in

a source from causing or contributing to emissions th at 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 disc uss this over the phone if you like. Just let me know. Thank you.3 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